Unemployment
	 — 
	Question

Lord Roberts of Conwy: To ask Her Majesty's Government what steps they are taking to reduce the level of unemployment among 16 to 24 year olds.

Lord McKenzie of Luton: My Lords, the Government have invested £5 billion, through DWP, to ensure that people are supported to find work during the recession. This includes more resources for Jobcentre Plus and the flexible new deal; increased staffing; our six-month offer to jobseekers; and, of course, the young person's guarantee and Future Jobs Fund.
	Furthermore, our Backing Young Britain campaign seeks to help young people find work while they are studying, as well as helping those unemployed.

Lord Roberts of Conwy: I am grateful to the noble Lord for that reply. In the Prime Minister's speech at the Labour Party conference, he referred to the,
	"100,000 new young people's jobs we are already creating".
	He went on to talk about a further 10,000 skilled internships and 10,000 green work placements. Is all that enough, in view of the fact that the young unemployed now number close to 1 million?

Lord McKenzie of Luton: Well, my Lords, the noble Lord asks "is it enough?". It is certainly a good deal more than the noble Lord's party would do, because it is predicated on investment by government. Because the noble Lord's party is on record as opposing the fiscal stimulus, it would not be able to do what we are doing. The Government are supporting and investing in a range of programmes, including the young person's guarantee. It is right, of course, that unemployment continues to rise, and with it youth unemployment, but there are signs that it is easing. We should not forget the fact that young people tend to come off jobseeker's allowance faster than other people. In terms of NEETs, there are now more young people in employment and education than there were in 1997, and the number of 16 and 17 year-olds in the NEET category has declined for three years in a row.

Lord Tomlinson: Does my noble friend agree that, rather than wallowing in the bad news that there is around, in relation to unemployment we ought to recognise that the stimulus package is beginning to work and that the unemployment figures published last week were far lower than had been anticipated and seem to indicate that there is a reasonable prospect that unemployment is bottoming out?

Lord McKenzie of Luton: My noble friend is absolutely right. As I said a moment ago, unemployment is still rising but it is easing. We should not forget that there is a dynamic market here; the number of onflows on to JSA in September was 357,000, but the number of people leaving jobseeker's allowance was 336,000. Lots of people, young people included, are still finding work through the support that the Government are giving them.

Baroness Thomas of Winchester: My Lords, will the Minister do his best to ensure that the admirable Access to Work scheme, which helps many disabled people get into work, including many in this age range, is not so bureaucratic that, by the time all the paperwork is done, the employer may have withdrawn the job offer? We have heard that that has happened, particularly in the field of the hard of hearing.

Lord McKenzie of Luton: My Lords, if that has happened in individual cases, we are certainly happy to look at it and take it up. But I think that the noble Baroness will share the view that Access to Work has been a huge success. The Government have doubled funding for it, and it is making a real difference to disabled people in helping them to access employment. I understand that it is on the lists of those programmes that the noble Lord, Lord Freud, has his sights on, should he ever have the opportunity to introduce them in government. I think that it is due to go, should there be a change of government, which I do not expect.

Lord Freud: I can confidently tell the Minister that that is not one of the programmes that we have in our sights, as he puts it.
	The programmes in the young person's guarantee look very similar to those in the new deal for young people, which was introduced 11 years ago. That programme managed to place only one young person in five into work, according to the DWP's own employment data. Does the Minister think that the young person's guarantee will perform better than the new deal for young people and, if so, why?

Lord McKenzie of Luton: My Lords, I do believe that it is an effective proposal, which will help young people to access work or work-focused training. The structure of the programme is quite appropriate and it is targeted correctly. I do believe that the programme will succeed and be an important part of the range of government programmes. It is, again, part of the programme that is funded through the fiscal stimulus.

Lord Morris of Manchester: My Lords, while the additional support to help the unemployed—more especially, jobless young people—is most welcome, would my noble friend agree that, in the present economic climate, it is more important than ever to recognise the added vulnerability of disabled young people in seeking to enter and remain in work, and that progress made over recent years in prioritising their claims should continue with renewed energy and commitment?

Lord McKenzie of Luton: My Lords, my noble friend raises a very important point and I agree with him. We must continue to support disabled people into work, notwithstanding the challenges of the current recession. That is why we are investing £1 billion in Pathways to Work between 2008 and 2011, doubling—as mentioned a moment ago—the Access to Work budget from £69 million to £138 million by 2013-14, and planning to introduce a new, more integrated specialist disability programme, Work Choice, by October 2010. Meanwhile, we are taking extra powers in the current Welfare Reform Bill to ensure that customers engage with the back-to-work support that we offer.

Lord Cotter: My Lords, does the Minister agree that, as has been mentioned already, it is very important that young people are given every opportunity possible? Internships have been mentioned. Does he agree that it is important that, while they are there, people are also treated fairly through internships and that opportunities are given as soon as possible to provide paid work? Volunteering is another area that could similarly help.

Lord McKenzie of Luton: Yes, my Lords, and that is very much part of the approach in Backing Young Britain, where the Government have initiated a campaign which is really a rallying call to businesses, charities and government bodies to create more opportunities for young people. Included in that is the creation of internships for 18 year-olds and non-graduates, as well as providing more apprenticeships and internships for graduates.

Lord Cameron of Dillington: My Lords, do the Government intend to give more support to rural youngsters to enable them to get to work? In other words, do they intend to put more money behind the Wheels to Work schemes, which currently woefully lack most central government support?

Lord McKenzie of Luton: My Lords, a range of support is available to individuals through Jobcentre Plus. Certainly, issues around transport, time and access to jobs are taken into account in the way that jobseeker's allowance is administered.

Highways Agency: Traffic Officers
	 — 
	Question

Lord Trefgarne: To ask Her Majesty's Government what is the role of the traffic officers employed by the Highways Agency; and what is the statutory authority under which they exercise their powers.

Lord Adonis: My Lords, Highways Agency traffic officers manage traffic primarily on motorways in England, where they perform a number of control room and on-road functions. They deal with incidents, except where there is a loss of life, injury or potential criminal activity, when they assist the emergency services. They exercise their powers under the Traffic Management Act 2004.

Lord Trefgarne: My Lords, I am grateful to the Secretary of State for that reply. Does he not agree with me, however, that every time we pass a new Bill to create a new quango we include provision for a little group of people authorised to order us about? Is this not a wholly undesirable development? Would he like to review the powers of these officers, who are, no doubt, worthy and honourable people, with a view to considering whether they should be reduced, like all others?

Lord Adonis: My Lords, that is a slightly strange question. The powers granted to traffic officers were granted by Parliament, not through some secret process without due consent, but through the Traffic Management Act 2004, which I understand was debated thoroughly in this House and I see on the title page was,
	"ENACTED by the Queen's most Excellent Majesty, by and with the advice ... of the Lords Spiritual and Temporal".
	The powers of traffic officers to stop or direct traffic are set out clearly and explicitly in Section 6. As to why we have traffic officers, there has been a big rise in traffic on the motorway network—a 10 per cent rise in the past 10 years alone. The problem of congestion and management of the motorway is a very big issue. If this work was not done by traffic officers, it would need to be done by the police. Mick Giannasi, chief constable of Gwent and spokesman for the Association of Chief Police Officers on road policy issues, says:
	"The Highways Agency Traffic Officer Service provides a valuable service dealing with minor incidents and traffic management on England's motorways. This work relieves police officers who are able to concentrate on dealing with criminals and investigating serious incidents".
	Far from this being a needless quango, these officers perform a valuable service, which keeps the traffic on our motorways moving day in, day out.

Lord Berkeley: My Lords, is there not an argument for having more of these people, so that they, together with the police and the vehicle inspection agency, could target more foreign lorries in terms of safety and drivers' hours, given the enormous number of accidents that those lorries cause on our motorways?

Lord Adonis: My Lords, I will represent his views strongly to my right honourable friend the Chancellor of the Exchequer, because I am always in the market for expanding the scope of my department. One thousand and seventy-two traffic officers patrol 1,759 route miles of motorway, so this is a proportionate service. By comparison, for the railways there are 3,236 British Transport Police officers and police support officers, who cost £271 million. That, of course, is a long-established service, which keeps the railways running. Therefore, it looks to me as though we provide a proportionate service to keep the traffic moving. However, my noble friend is right: there are continuing issues of ensuring that HGVs abide by the law and in particular this serious issue that we face on the roads of overseas HGVs being fully compliant with UK safety regulations.

Lord Bradshaw: My Lords, will the noble Lord care to reflect on the fact that over the past 10 years this House has passed legislation apart from that to which he referred—namely, that setting up police community support officers—and that each time we have been told that police will be able to concentrate more of their effort on catching criminals? However, it appears to me that every time more people are put in, the police become steadily less visible. Will the noble Lord look at that?

Lord Adonis: My Lords, the traffic officers are extremely visible, so much so that the noble Lord, Lord Trefgarne, is keen that they should be removed from the motorways. Visibility is not an issue here; the issue, which was properly debated by the House, is whether it is right to have a class of officers who are capable of dealing with traffic incidents—most of which are fairly minor, but require support to get the traffic moving again—rather than to devote police time to managing these incidents.

Baroness Sharples: My Lords, the noble Lord said that traffic officers attend an accident. If they find someone dead, do they then disappear?

Lord Adonis: If the noble Baroness wishes to make me aware of a particular incident, I shall certainly look at it, but I am not aware that the traffic officers just disappear after incidents; they see that they are properly cleared up before they disappear.

Lord Dear: My Lords, in reality, as most of us know, traffic officers are the only uniformed presence on the roads, as police patrol vehicles are almost non-existent. Given that criminals use cars all the time on the roads, does the Minister foresee an extension of police powers to traffic officers, as discussed, or will he press for a more obvious police presence?

Lord Adonis: My Lords, we are keeping the powers of traffic officers under review, but we do not believe that it would be appropriate at present to extend police powers to them.

Lord Mackenzie of Framwellgate: My Lords, following on from that question, will my noble friend urge chief constables to police more consistently? It appears to me that, as has been suggested, there is a bit of a postcode lottery. Policing is more than about reducing accidents, although that is important; it is about stopping terrorists and serious and organised crime. Will he urge chief constables to be more consistent?

Lord Adonis: My Lords, this Question is about traffic officers. Their whole purpose is to provide a uniform system across the motorway network in England. The Traffic Officer Service has provided that to the benefit of motorists. Surveys find the Traffic Officer Service to be highly popular with motorists.

Baroness Hanham: What has been the impact of traffic officers on relieving motorway congestion after incidents on the motorway? Has there been any assessment of whether incidents are cleared up more quickly if a traffic officer is present?

Lord Adonis: My Lords, I am glad to be able to give the noble Baroness those figures. In the past two years alone, the proportion of incidents that have been cleared up in less than 40 minutes on heavily trafficked routes has risen from 76 per cent in December 2006 to 91.2 per cent in December 2008. The proportion of incidents cleared up in less than 90 minutes on such routes has increased from 90 per cent in December 2006 to 96.8 per cent in December 2008. I take that to be a vindication of the presence of the Traffic Officer Service.

Assisted Suicide: House of Lords Judgment
	 — 
	Question

Lord Warner: To ask Her Majesty's Government what response they will make to the House of Lords judgment of 30 July in the case of R (on the application of Purdy) v Director of Public Prosecutions and to the subsequent action by the Director of Public Prosecutions.

Lord Bach: My Lords, the judgment in this case concerned the exercise of prosecutorial discretion which is a matter for the Director of Public Prosecutions. In accordance with the judgment, he has published an interim policy for prosecutors setting out the factors which might be relevant when deciding whether it is in the public interest to prosecute someone for assisting a suicide. It is currently the subject of a public consultation, and the finalised policy is due to be published in spring next year. It is not appropriate for the Government to seek to influence the exercise of this prosecutorial discretion.

Lord Warner: My Lords, I thank my noble friend for that reply. Does he agree that despite the humane attempts by the Law Lords and the DPP to clarify in a sensible way the existing law, it is inevitable that Parliament will need to come back to this issue? Does he further agree that progress in Parliament on clarifying the law on assisted dying might be improved if there were some kind of independent commission—dare I say, a royal commission?—to look dispassionately at the evidence to help Parliament in its deliberations?

Lord Bach: My Lords, the Government believe that any change to the law in this area is an issue of individual conscience and, of course, a matter for Parliament to decide. We debated this issue in this House on a free vote on 7 July last and came to a certain conclusion. We think that it is more appropriately dealt with through a Private Member's Bill and, indeed, I hear that there is a possibility that in another place there may be a couple of Private Members' Bills that touch on this very sensitive topic. As to whether there should be a royal commission or anything like it, that is an idea that I can take back.

Lord Thomas of Gresford: My Lords, the Minister knows that the Director of Public Prosecutions has to consent to a prosecution. Can he give the House an assurance that the Director of Public Prosecutions will take personal decisions in the exercise of his discretion and will personally deal with these matters? Looking at the document that has been produced, the handling arrangements within it suggest that the head of the Special Crime Division might take these decisions.

Lord Bach: My Lords, as it happens, I met the director yesterday and, although I do not want to quote him out of turn, I am pretty sure that he will take any decision that needs to be taken in a case of this kind.

Lord Elystan-Morgan: My Lords, does the Minister not agree that there is a faint irony in that, in the case of Purdy, the director through his learned counsel argued most strongly against the issuing of any specific guidelines? Furthermore, does the Minister agree that central to the whole question of the exercise of formal criteria in relation to prosecution is a rigorous and wide-searching inquiry of investigation into each individual case? In those circumstances, will additional personnel with adequate expertise and experience, be they in the police service or in the office of the Director of Public Prosecutions, be appointed to carry out this massive task?

Lord Bach: My Lords, I cannot say that that will necessarily happen, although I can say that the director has done what he was asked to do by the House of Lords Judicial Committee—that is, to draw up guidelines both for and against prosecution. He did that within two months of the judgment of the House of Lords Judicial Committee and he is to be applauded for doing so.

The Lord Bishop of Leicester: My Lords, do Her Majesty's Government agree that, in drawing up the guidelines for the application of the law prohibiting assisted suicide, the Director of Public Prosecutions must take care not to be seen to condone assisted suicide or to produce a set of rules for breaking the rules?

Lord Bach: My Lords, I am quite sure that the director is aware of that. Of course, it is not for him to change the law—not that he has any intention of doing so—nor can he give any prospective immunity from prosecution. He has merely drawn up these guidelines to clarify the factors for and against prosecution, precisely as he was asked to do as a result of the judgment in the Purdy case.

Baroness Jay of Paddington: My Lords, does my noble friend agree that one of the most helpful things in the interim policy is the attempt to draw a distinction between what one might describe as compassionate assistance and malicious assistance, although that would clearly be difficult to prove in a prosecution case? Does my noble friend agree that this might be precisely an area where the kind of independent inquiry suggested by my noble friend who asked the Question would be very useful?

Lord Bach: My Lords, that area could indeed be something that an inquiry could look at but there are many other areas in the arguments both for and against prosecution that any such inquiry would want to look into. However, I shall take back the point that there should be such an inquiry.

Lord Goodhart: My Lords—

Lord Campbell of Alloway: My Lords—

Lord Hunt of Kings Heath: My Lords, I think that it is the turn of the Conservatives.

Lord Campbell of Alloway: My Lords, does the noble Lord agree that this is not just a question of rules against breaking the rules but a question of flexibility in the judgment of someone in charge of the whole situation? On this occasion, the attitude of the Government appears to be totally correct.

Lord Bach: My Lords, I am very grateful for the noble Lord's support. I do not always have it but today I am very grateful for it.

Tax Returns: Postal Strike
	 — 
	Question

Baroness Gardner of Parkes: To ask Her Majesty's Government what plans they have to take account of people filing paper tax returns who are affected by difficulties in the postal service and the proposed strike.

Lord Davies of Oldham: HMRC will treat as delivered on time any paper tax return for 2008-09 delivered by hand to an HMRC office by Monday 2 November. HMRC will also accept the proposed postal strike as a reasonable excuse for failing to file by the 31 October deadline but customers will need to be able to show that they posted their returns in good time. If they can do this, they will not have to pay a filing penalty.

Baroness Gardner of Parkes: My Lords, I declare an interest as one of the many thousands who will be filing a paper return. From what the Minister has said, if the counter services are not on strike, it will be possible to get a certificate of posting, which is a free service, and that that will be accepted as proof of posting in time. What about those people who have already posted their returns and are simply not getting anywhere? When they phone up, they are told that their return has not been received. I am still waiting for post dating from early September which I have not received.

Lord Davies of Oldham: My Lords, the noble Baroness is certainly right in her first contention that returns can be accepted in the offices, as I have indicated, up to Monday 2 November. On the other point about postal services I have indicated that, where an individual is able to establish that the return was posted in good time, the Inland Revenue will certainly take account of that fact and the individual will not be subject to any penalty. However, the House will recognise that the issue is governed by statute and therefore the degree of flexibility for the Inland Revenue is limited.

Lord Newby: My Lords, does the Minister accept that the problem raised by the noble Baroness does not apply only to income tax returns? For example, people paying credit card bills by post could well find that their payment arrives late and that they are stung for a huge penalty by being even a day or two late through no fault of their own. Will the Government speak to the principal credit card companies and ask them to draw up guidelines which individual customers might be expected to follow? If he is telling us that we should register the delivery of such items at a post office to prove they have been posted by a certain time, customers would find that extremely useful advice.

Lord Davies of Oldham: My Lords, I always assume that these exchanges in the House are communicated to the whole of the population, so the advice has already been tendered. The noble Lord will recognise the obvious point that, so far as HMRC is concerned, the Government have the most direct responsibility; we have indicated how we expect HMRC to discharge that responsibility. As regards credit cards, those are private transactions. We will look at advice but the noble Lord will be all too well aware that that is a matter between the private citizen and the private company concerned.

Baroness Noakes: My Lords, the Minister replied in terms of individuals filing paper tax returns. Can he also comment in the context of VAT returns, as many small businesses still submit their VAT returns on paper?

Lord Davies of Oldham: My Lords, this Question is about matters relating to individual taxpayers, but the Inland Revenue is always reasonable with regard to such issues.

Noble Lords: Oh!

Lord Davies of Oldham: Well, that is against a background of Parliament making it absolutely clear that taxpayers have an obligation to make their returns on time. That is statute; that is the law which this House and the other place have established. The Inland Revenue is obliged to work against that background.

Lord Brooke of Sutton Mandeville: My Lords, as we have time on our side, will the Minister accept that my late noble kinsman and my late noble relative on their mutual honeymoon found a sub-post office in rural Wales where a notice in the window said: "Letters for the 5.30 post must be posted by six o'clock at the very latest"?

Lord Davies of Oldham: My Lords, the House is always very grateful for sufficient time at Questions to enable the noble Lord to produce his anecdotes.

Baroness Gardner of Parkes: My Lords, further to my supplementary question, in answer to which the Minister said that people would be able to hand deliver these items, what publicity will he give so people know where the local centres for hand delivery are? Many people doing paper returns are not computer literate and do not have access to a computer to check those records.

Lord Davies of Oldham: My Lords, certainly that will be communicated online for the benefit of those who are computer literate. As far as the rest of the population is concerned, I took steps to identify how difficult it was for citizens to comply with this opportunity, although at this stage we are talking about tax returns that are coming right up to the margin. From the extensive list of Inland Revenue offices, I can see that every town with a population of about 60,000, or even smaller, has an office where this obligation can be complied with.

Lord Armstrong of Ilminster: My Lords, will it be in order for the noble Baroness who asked the Question and other Members of this House who still adhere to paper tax returns to deliver their returns to Her Majesty's Revenue and Customs office in Whitehall?

Lord Davies of Oldham: My Lords, when I asked about the prevalence of offices, Her Majesty's Treasury had not struck me as the most obvious point of call. I would be loath to suggest that the noble Lord is seeking an additional privilege for Members of this House over the ordinary taxpayer. Probably he would have to move a little further up the road than Whitehall to comply with this request.

Provision of Services Regulations 2009

Company, Limited Liability Partnership and Business Names (Sensitive Words and Expressions) Regulations 2009

Company, Limited Liability Partnership and Business Names (Public Authorities) Regulations 2009

Legislative and Regulatory Reform (Regulatory Functions) (Amendment) Order 2009
	 — 
	Motion to Refer to Grand Committee

Moved By Baroness Royall of Blaisdon
	That the draft order and regulations be referred to a Grand Committee.
	Motion agreed.

Driving Instruction (Suspension and Exemption Powers) Bill
	 — 
	Order of Commitment Discharged

Moved By Lord Tyler
	That the order of commitment be discharged.

Lord Tyler: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
	Motion agreed.

House Committee: Third Report

3rd Report from Select Committee

Motion to Agree

Moved By The Chairman of Committees
	That the third report from the Select Committee (HL Paper 144) be agreed to.

Lord Brabazon of Tara: My Lords, today the House is being asked to approve revised guidance and explanatory notes for Refreshment Department functions as proposed by the Refreshment Committee and approved by the House Committee. The Refreshment Committee initiated its review to make the guidance clearer and to ensure that it stood comparison with the guidance in the House of Commons. The resulting guidance and explanatory notes are set out on page 4 of the House Committee report. The one significant difference from the existing guidance is that Members will not be able to sponsor promotional functions for companies in which they have a direct pecuniary interest.
	I believe that the revised guidance is much clearer than the existing guidance and that Members will find the new explanatory notes helpful. Along with the policy of publishing details of all functions online as a matter of course, the guidance will result in a robust and transparent system in which both Members and the general public can have full confidence. I beg to move.
	Motion agreed.

Royal Mail: Industrial Dispute
	 — 
	Statement

Lord Mandelson: My Lords, I wish to make a Statement about the decision of the Communication Workers Union to take national industrial action later this week.
	No one is in doubt about the damage that such industrial action will cause, but those who advocate strike action have not been clear about why it is being threatened. The dispute at the Royal Mail is about modernisation, which has been the subject of localised strikes, particularly in London, for many months.
	We know from the Hooper review on postal services about the company's need to change and reform in the face of a postal market being transformed as people switch to text, e-mail and direct debit, and as the growing area of mail, which is parcels, has a variety of alternative operators from which to choose. Royal Mail has to respond to the fact that 10 million fewer letters are being posted each day than three years ago and total mail volumes have fallen by a further 8 per cent in the first half of this year. In other words, if it stands still, this company faces terminal decline.
	Following a previous national strike two years ago, in 2007, the union—the CWU—and management reached a national agreement on pay and modernisation. That agreement set a framework of four phases for bringing essential change to Royal Mail. The first three have been introduced throughout the country, but are being resisted in some places, as I will come to shortly. The changes have involved the introduction of more walk-sorting machines and new working practices, including employees being expected to do the full number of hours that they are paid to work.
	Phase 4, the next phase of modernisation, is yet to be agreed in substance, rather than outline, and will be about a new framework for improving industrial relations. This will include introducing walk-sequencing machines to sort the postal delivery round and developing new business opportunities, along with a new system for rewarding employees.
	In the majority of Royal Mail's workplaces, Phases 1 to 3 of the national agreement have been implemented without any local industrial action being mounted. Outdated working practices have been replaced and efficiency is being improved. But in other parts of the country, most notably in London, there has been repeated non-co-operation and industrial action to frustrate the agreement's implementation.
	It is claimed by union representatives that in London, management is unilaterally imposing change that goes beyond the 2007 agreement's first three phases. Management contests this, pointing out that London is being asked to accept only what everyone else in the country is delivering under the first three phases. These local disputes have now escalated into the threatened national strike.
	I very much regret what is happening. Candidly, I think it is totally self-defeating for our postal services and those who work to deliver them. Taking industrial action will not resolve this dispute. It will serve only to drive more customers away from Royal Mail. In the delivery of parcels—where there would otherwise be a prospect of growth— Royal Mail's reputation for reliability could be irrevocably damaged, and in letters, it will lead to a further twist in the downward spiral of mail volumes.
	Business will be quick to recognise that while you can picket a delivery office to stop the service or refuse to deliver letters, you cannot picket the ever-present internet. Royal Mail's small business customers will look on with anger and exasperation. Just as there are signs of the economy recovering and the prospects for their businesses are improving, strikes now will set them back and put their businesses in jeopardy. Royal Mail's finances will be plunged into the red. Last year, the company, out of a £6.7 billion mail business turnover, made less than 1 per cent profit. One thing this company cannot afford is strikes and industrial action. Change in a big organisation is never easy, but for the Royal Mail it is unavoidable.
	Let me make it clear that contrary to what some may say, the dispute is also not about pensions. The trustees are engaged in their periodic assessment of the pensions deficit and, lest there be any doubt, let me make it clear: the Government's policy on the pensions deficit will not be dictated by strike action. The Government were prepared to take on the pension deficit as part of a package of modernising measures set out in the Postal Services Bill. Sadly, the CWU did not support those proposals. When it comes to financing, the Government and the taxpayer have not held back. We have made available £1.2 billion to finance a modernisation and investment programme, and that remains on the table.
	We are, of course, in frequent contact with both management and the union, and they have continued talking today. We strongly welcome that. Our message to them has been clear: put your customers first. Strikes are not the way to resolve differences or safeguard the future of our postal services. The Royal Mail needs management and unions to have a relentless focus on turning it into an efficient, modern postal company, protecting as many jobs as possible and providing customers with the services that they need. They should put behind them, once and for all, the endless cycle of disputes.
	I will, of course, continue to encourage a settlement, but I cannot impose good industrial relations on the company or disinvent the internet. An independent third party may well be needed to help the two sides to resolve their differences. ACAS is engaged, but we have to be realistic: it will be far easier for ACAS to play an effective role if the threat of a national strike is lifted.
	The Government are ensuring that vital services to the public, especially those who are most vulnerable, are maintained. The Department for Work and Pensions will, if necessary, implement plans to ensure that the small minority of pensioners and others on benefits who still receive their cheques in the post will be able to pick them up from their nearest post office. If there were prolonged disruption, the Department of Health and NHS trusts would, if necessary, use alternative arrangements to transport appointment notifications, blood samples and test results.
	I urge both sides to make every effort to avoid damaging industrial action and to resolve this dispute. That is what is in the interests of the Royal Mail, its employees and its customers.
	I commend this Statement to the House.

Lord Hunt of Wirral: My Lords, I welcome the fact that the Secretary of State is here today to make the Statement, but my, what a bleak picture he paints. We share his hope that this unfortunate dispute will be resolved quickly and with as little damage as possible to the Royal Mail. He did not mention the fact that the Communication Workers Union has invented a new pretext for industrial action: namely, the decision of Royal Mail management to take on more temporary workers than usual this autumn. Quite rightly, managerial decisions are managerial decisions, but anything that reduces inconvenience to the customer is surely to be welcomed.
	I note that the Secretary of State uses the language of regret. Sadly, as I have pointed out previously, he cannot bring himself to apologise for 12 years of apathy and inaction on the part of the Government. These strikes against modernisation are the inevitable outcome of that ministerial vacillation which he vainly attempted to end.
	There is far too much finger-pointing in politics, but we are here to hold Ministers to account. Everyone agrees with that. Although the Secretary of State's words will be carefully weighed on the official record, as one would expect, we could all hear in his voice in this Chamber today, and see etched on his face, the raw frustration of someone who knows what needs to be done but has not been allowed to get on with the job.
	It is now almost a year since the publication of Richard Hooper's authoritative report on the future of postal services in the United Kingdom. In response to that excellent report, the Secretary of State produced a Postal Services Bill in February, closely modelled on the Hooper proposals, and we in this House spent five days in Committee and a day on Report during March, April and May. The Secretary of State rightly observed that all three parts of the Bill—the injection of private capital and expertise, a rescue package for the pension scheme, and regulatory reform—had to be taken together or not at all. As he will recall, he said at Second Reading that the Royal Mail and its people,
	"need the full package of measures we are proposing".—[Official Report, 10/3/09; col. 1067.]
	The Secretary of State was gracious enough to remark that, in due course, our efforts in this House had helped to improve the Bill considerably, in particular by opening the door, as we did, to the chance for employees to own shares. Yet on 1 July, he came to this House to advise us that his and our efforts had come to naught. The Postal Services Bill has now been dumped, as I understand it, into cold storage by a Government of the walking dead.
	The only Statement that is worth the Secretary of State making to this House today is one to the effect that he will personally ensure that the Postal Services Bill proceeds to Royal Assent as soon as possible. In speech after speech, he has emphasised the urgent need for action on the Royal Mail and rued the fact—I remember him doing this vividly—that legislation to modernise the organisation had not been brought forward 10 years earlier. The Conservative Party has supported him all the way, both here and in another place, and I am personally authorised to reassert here, today, that our views have not changed and will not change. We all know that the views of the Secretary of State have not changed. How it must pain him to see this country transported back into the dark days of the 1970s when trade union officials could pay a visit to No. 10 and stop a major industrial reform in its tracks. The sad fact is that, as it succumbs to strike action, the Royal Mail finds itself unable to deliver, and the Secretary of State cannot deliver either.
	I suppose this is all too symbolic of a wider failure in government. I also begin to suspect that many of the Secretary of State's colleagues are behaving like an army in chaotic retreat. It is little wonder that the employees of the Royal Mail are unsettled. Their organisation is beset with uncertainty, their pension scheme is on the verge of insolvency and the Government offer nothing but regrets. Yes, this strike is suicidal, but it is a case of assisted suicide. The Conservative Party takes nothing for granted, but the Labour Party seems already to have the cloying smell of defeat in its nostrils. We all sense the Secretary of State's simmering frustration, but I do not think he is a man to give up so easily, and I am sure he does not share the wan, supine, feeble defeatism that so many of his colleagues evince about the future of the Royal Mail. To use his words again, the Postal Services Bill,
	"will lead to a new, modern, relevant and, above all, successful framework for the future of postal services in this country".—[Official Report, 10/3/09; col. 1133.]
	Where is that optimism now? Where are these sunlit uplands? Today, we have heard an apology of a Statement when what we deserved was a Statement of apology. The Royal Mail is now in crisis, and I reaffirm what we on these Benches have always said: the Secretary of State may not be able to count upon the support of his own party in the other place for the Postal Services Bill, but I repeat today the unstinting support from the Conservative Party for the passage of that legislation. We hope to see it complete all its stages in another place at the earliest opportunity because we are proud to support the conclusions of Richard Hooper and the Postal Services Bill. It is just very sad that so few of the Secretary of State's colleagues can make the same assertion.

Lord Razzall: My Lords, as is so often the case, the noble Lord, Lord Hunt of Wirral, clearly hit the nail on the head when he described the position in which the Secretary of State now finds himself.
	I thank the Secretary of State for the Statement, which gives an excellent summary of the problems arising from this strike. He gives the game away towards the end of the Statement when he urges both sides to make every effort to avoid damaging industrial action and resolve this dispute. Of course, he already said in his Statement that he will continue to encourage a settlement but he cannot impose good industrial relations on the company.
	The Government's problem now over the strike is the antithesis of Baldwin's description of the newspaper proprietors of the 1930s: that they had power without responsibility. In this case, the Secretary of State, in the eyes of the public, has responsibility without power. Quite rightly, he will take the view—no doubt he has said so—that the strike is nothing to do with him: that this is for the management of the Royal Mail to deal with, and that it is dealing with it as best it can. Given that that is clearly the Government's position, I have only two specific questions on the strike. I will then get into the wider issues, which the noble Lord, Lord Hunt, has raised.
	The Secretary of State's statement that it will be far easier for ACAS to play an effective role if the threat of a national strike is lifted ought to be a test for prospective civil servants when they take their Civil Service exams: how to write a euphemism. What that actually means, as I understand it, is that, contrary to what the union wishes—to involve ACAS—the Royal Mail management is not prepared to agree to ACAS being involved unless the threat of the strike is lifted. I would be grateful if the Secretary of State could explain that euphemism and confirm that that is currently the case.
	The second point about the strike follows on from the interesting debate, in which the Secretary of State did not participate, on the Question from the noble Baroness, Lady Gardner of Parkes. There is a lot of concern about Treasury deadlines being met on income tax returns, and about credit card deadlines, as my noble friend Lord Newby indicated. The general sense seemed to be that, so long as these things are posted before the required date, all will be well if they do not arrive. However, as I understand it—no doubt the Secretary of State will confirm this—all post boxes will be sealed up if there is a strike and it will not be possible to post anything. I am therefore not quite certain how the answers that were given can actually meet the point that is being made. Perhaps the Secretary of State will deal with that in his final remarks.
	There is a wider point to make, and the noble Lord, Lord Hunt of Wirral, was quite right to raise it. Those of us who considered the Postal Services Bill in this House are well aware of the Secretary of State's commitment to the Bill—a commitment that was not, if I may say so, entirely shared by his colleagues right at the back of your Lordships' House; it clearly was not shared by a large number of his colleagues in another place, which is why the Bill had to be withdrawn. However, given that we are in this strike situation, it behoves him to tell us what the Government propose to do about the key issues in that Bill.
	What does the Secretary of State propose to do about the pensions deficit? There are some mealy-mouthed words in the Statement about the trustees looking at this, but we all know that there is a massive pensions deficit. What are the Government going to do about it? What do they think will happen to the modernisation process, which fed into the government proposals to bring in a minority stake? Will the Government endeavour to bring back a Bill to enable third parties to come in with capital and their expertise to improve the modernisation process, or has that proposal been dropped? What are the Government going to do about the changes in regulation that were enshrined in the Bill? I think that everyone, across the parties, agreed with the proposed changes of regulation. I understand that the CWU was keen for that to be brought in. What are the Government going to do about that?
	Finally, and most crucially, the Postal Services Bill enshrined in legislation, for the first time, confirmation of the universal service obligation. Are the Government, without that Postal Services Bill, still totally committed to the universal service obligation? What are they going to do to ensure that when we get past this strike that USO is enshrined in our life?

Lord Mandelson: I am grateful to the noble Lord, Lord Hunt, for his support, if support it was. We all agree that none of us would like to be in the place in which we find ourselves. As a Government we would like to have successfully taken through the Postal Services Bill. We remain of the view that Hooper got it absolutely right. In recent time, I have not read such a well analysed, well argued report of its kind with recommendations that were so obviously, patently correct for the future of the Royal Mail, which is precisely why we introduced the legislation in the first place. Had we done so, and were we successful in introducing a minority strategic partner from the private sector into the Royal Mail, I have no doubt that that would have introduced a new perspective to this company, which would be linked to the real world in which people have to work hard and flexibly for every customer and every job. That is what people have to do when they are running a business rather than a social service, and the Royal Mail is a business. It is not a social service. It operates in a market and faces competitors.
	The Postal Services Bill, if it had been enacted, would have helped to pave the way for a transformation of this business. But, of course, as the noble Lord knows, the state of the markets defeated us. In reading my Financial Times today, I notice that the Conservative opposition and their spokesmen are making it clear that they would not rush to introduce this legislation were they to be elected. I gather from that newspaper that they would wait and see, and test the markets first, before deciding what course of action to take. Read the Financial Times. We have to live in the real world. The fact is that for all the considerable, misconceived and misplaced opposition that was mounted to this Bill, at the end of the day it was the markets that defeated us and not the political opposition.
	The noble Lord referred to the casual workers as a cause for further grievance. I should put it on record that the Royal Mail has given assurance that the 30,000 workers are being recruited on a casual basis and are, therefore, being recruited legally. The temporary agency workers being employed are part of the Royal Mail's usual seasonal recruitment and are not recruited directly to perform the duties of those taking place in the strike. It is as well to clarify that before I am questioned on it further.
	In response to the noble Lord, Lord Razzall, I am sure he would agree that it would be very difficult for ACAS to become engaged in this dispute—ACAS would need to be invited in by both sides—while the threat of a national strike hangs over the company as a whole from the union side. For ACAS to mediate and then arbitrate, it would be reasonable to expect the threat of a national strike to be lifted. Of course it will be difficult for many people who depend on the postal service should the strike occur; that is why we deplore the prospect of it happening. But some postal services will be available because not all post boxes will be sealed and the post offices will still be open.
	On the pension deficit and the regulatory changes, I will say this. In our legislation, we as a Government were prepared to take on the pension deficit and to make the regulatory changes, but all of us were agreed that it could be done only in the context of a real and earnest commitment to modernisation and change in this company. The fact is that we cannot, I am afraid, help Royal Mail unless the company and its workforce are prepared to help themselves. That is the reality, and we cannot get away from it.

Lord O'Neill of Clackmannan: I offer my sympathy to my noble friend, as no one has done more to try to improve the prospects of Royal Mail. I also say to him that the sanctimonious Schadenfreude that we have heard from the Benches opposite is no comfort or support to anyone on this side of the House. The case for reform remains. The point about pensions is equally valid now as it was then. Given the current climate, were there to be a change of government, I do not think that there would be anything like the support for the pensioners and potential pensioners of Royal Mail that this Government are offering.
	Can I just say this to my noble friend? While many of us support him in his endeavours, it would be stretching our loyalty further than many want to go if we were prepared to support and sanction the strike-breaking on the massive scale that is envisaged by the recruitment processes that have been indicated. I know that this is an industrial union and as a consequence it is often very blinkered, but let us not abuse it. The union has been a friend of the Labour Party and the Labour movement in the past. These are our people and we have to give them a chance to come to a deal. I hope that ACAS will be seen as an opportunity and not an obstacle in the resolution of this dispute. I like to think that my noble friend will support me and others who want change and want it quickly at this time.

Lord Mandelson: My noble friend has been utterly consistent in his calls and demands for change, reform and modernisation in Royal Mail. He contributed to many of our debates during the passage of the legislation and I commend him now as I did then for his commitment to a prosperous, successful and viable future for Royal Mail, which, as he has always argued, must come with change and reform, not without them. On his point about casual workers, so far as I can see and have heard from the Royal Mail management, I do not think that there is any desire to recruit an army of strike-breakers. I point out to him that Royal Mail is at liberty to recruit directly employed casual workers—it does so every year at this time—and it is doing so in greater numbers because, if the strike goes ahead, there will be considerable backlogs to clear. It is also allowed to recruit temporary agency staff via an employment business so long as they do not do the work of striking workers. I think that that is the valid point.

Lord Ashley of Stoke: My Lords, the incredible aspect of this situation is the failure of both sides to make a simultaneous declaration of, first, the strike being suspended and, secondly, the employers referring this to arbitration. Why cannot a simultaneous declaration be made by both sides?

Lord Mandelson: I sympathise with my noble friend's frustration. As I set out in my Statement, the point is that there is a national agreement on pay and modernisation which it is reasonable to expect both the management and the workforce and its union to implement consistently. I would like to underline this point: in the vast majority of areas and in union branches across the country, phases 1, 2 and 3 of the national agreement are being implemented. There is no dispute; there is no strike action. They are implementing it—if not enthusiastically, then certainly willingly—because they see that there is no alternative for the future of their business. Unfortunately, a minority of areas and parts of the union—more in London than anywhere else—have decided that they do not want it; they are trying to unpick the first three phases and prevent the agreement from going forward to implementation in its fourth phase.
	We have reached a situation where the majority of areas and branches, and the national leadership of the union, have to take on those among their own ranks who are very recalcitrant, have dug in and have so far refused to go along with what the majority want in their own union. That has to be resolved and sorted out, and very quickly.

Lord Eden of Winton: My Lords, anyone who cares about the future of the Royal Mail must share the feelings of exasperation to which the Minister gave voice in the Statement. Some 36 years ago, when I was Minister of Posts, matters such as regulatory practices, manning levels and the introduction of new technology were pressing hard on the management and union in the Post Office. In his Statement, the Minister referred to the possibility of Royal Mail being in terminal decline. He also referred to the need to take care to look after the needs of customers. In the event that this proves terminal for Royal Mail, what contingency plans have the Government or the management of the postal services put in place or developed to ensure that customers' needs are fully met?

Lord Mandelson: My Lords, I and other members of the Government are not prepared to throw in the towel and accept that the only thing we can do in respect of Royal Mail is to manage its decline. We have not reached that stage and the majority of the workforce and the union have not reached that stage either. That is why they are co-operating, as I said, in introducing changes such as more walk-sorting machines and new working practices so that employees work all the hours for which they are employed. It is wrong to present this situation as though it were an entire workforce and an entire union that have washed their hands of change; they have not. None the less, there is a hardcore group of those who do not accept what has been negotiated nationally on their behalf. It is they who have to be persuaded before, as the noble Lord said, the downward decline of the business makes it impossible to save.

Lord Hoyle: My Lords, I declare an interest as a member of Unite, which has members in the Royal Mail. I welcome my noble friend's Statement, particularly where he says that it is not in the interests of anyone for this dispute to take place. I also welcome his saying that he will do all that he can and play any necessary role to prevent it from happening. It is very difficult when negotiations are at this stage, but is he really saying that Royal Mail will not go to ACAS unless the threat of the postal dispute is withdrawn by the union?

Lord Mandelson: The management of Royal Mail argues, not entirely unreasonably, that if it decided to go to arbitration with the threat of a national strike hanging over it, those circumstances would not be the most likely to lead to that arbitration being successful. Without speaking on behalf of the management, one does see its point.

Lord Clarke of Hampstead: My Lords, I am too long in the tooth to comment on the situation that we are in. After a lifetime of industrial relations experience, I think that sometimes things are said that can only exacerbate a difficult situation—but the Statement has been made, and I cannot sit here and not respond in the best way that I can. I declare my interest as a former postman, former union official and former chair of a Labour Party that was the custodian of manifesto commitments. I want to say one or two things before asking a couple of specific questions.
	The noble Lord, Lord Hunt of Wirral, true to the form that he showed through the passage of the Postal Services Bill in this place, was straight—he said what his party believed in and what it would do. As I have said on previous occasions, I respect that; if you have a manifesto commitment that gets the support of the people of this country, you have every right to do that. I want to help him on the question of why people go on strike.
	The Secretary of State has just said that this is not universal. Even in this day and age, in this economic climate and with the domestic pressures on people, almost 80 per cent of the ballot was in favour of a yes vote—not just from those in the pockets of so-called obstructionists, but throughout the country. Nearly 80 per cent have voted to support their union.
	I shall give my noble friend an example. There is an office in this country, nowhere near the capital city, with six workers. They received their ballot forms and all six voted yes, in an area of high unemployment. I shall tell your Lordships why. There is a 20 year-old woman employed in that office who has a child. She did her job but was told to go out, stay out and do more. When she said, "I've got to go to pick up my child at the proper time", they said, "You stay out until you've completed what we've told you to do. Otherwise go out and stay out; you're fired". That is part of the reason for the almost 80 per cent vote.
	Your Lordships have heard the union spokespeople say that it is not necessarily about money; it is not. It is not necessarily about modernisation, because the union has agreed to that. What is happening, and this House should know it, is the downright bullying of people. If anyone is in any doubt, please ask me for details about specific instances where management is bullying staff at present. That is why we have this industrial unrest.
	The Secretary of State mentioned the Hooper report. At the end of that long session of the Postal Services Bill, there was near unanimity on two sections: the pension deficit and the regulator. The point was the sale of shares, which was in direct contradiction of a manifesto commitment by the Government's party. It is not just the political forces—I see that the noble Lord, Lord Davies of Oldham, wants to stop me. I asked the Secretary of State throughout that debate what he was doing about this. It is the same management that is controlling this dispute that he had very little confidence in when he read the Hooper report. He should get on and sort out the regulator, do something about the pension deficit in a real way, as the noble Lord, Lord Razzall, has asked for, and let these people get on with what needs to be done.
	Finally, will the Secretary of State tell me the names of the workplaces where the walk-sorting machines are working? I have asked this several times before, and I ask it again today.

Lord Mandelson: My Lords, the point that I have been trying to make throughout is that there are many parts of the country, probably the majority of them, where mechanisation, new technologies, automation and changes in working practices have been introduced. I accept that that is happening. However, in other parts, I am afraid that there is what I can describe only as stiff, if not obdurate, resistance on the part of the minority of the union, its areas and branches to seeing this national agreement implemented. As a result of that, a whole series of localised disputes has escalated and produced the threat of a national strike at the end of this week.
	Of course, the Government do not condone bullying. I have asked the management about this and whether it has received reports of specific instances. It says that it has not. I have asked it to repeat the request to the union, so that these instances can be properly examined. I believe that, at the last time of asking, no instances were forthcoming. If there has been harassment, of course we do not condone it. However, I must say frankly to my noble friend that if there is an instance of harassment in a locality, you do not need a national strike to sort it out, with all the calamitous damage that would be done to the business because of its lost custom and the escalating number of lost jobs that would result from it.
	My noble friend said that 80 per cent of those who voted were in favour of strike action, but it is also possible, as he knows, to count the votes in a different way. If you count those who were against the strike action and those who chose to abstain or withhold their vote from the ballot, you find 60 per cent against. So there are ways and ways of looking at these results and counting the figures.
	Throughout all the debates in this House with my noble friend on the Hooper report and the legislation, he always said that the union was up for change. The localised strikes since then and the national strike now send exactly the opposite message. That is what the union has to take into account and avoid; it has to send a different message to its future customers if it is going to turn around its business and secure as many jobs as possible in the future.

Lord Baker of Dorking: My Lords, seeing as the Secretary of State is not receiving too much help from his Back-Benchers, perhaps I may offer my support for the line that he is taking. My noble friend had responsibility for the Post Office 35 years ago; it fell to me 25 years ago—so we all draw the short straw in our various careers. I, too, was faced with a national strike. The difference between now and then was that the Union of Communication Workers then resisted the national strike. It resisted the pressure of the militants and the handful of London sorting offices whose vested interest was disruption; it stood out against them. I wish that it would do that again now, because I am quite sure that this does not characterise the true nature of the Post Office.
	I echo my noble friend on the Front Bench in saying that, by withdrawing the Postal Services Bill, the Secretary of State threw away a weapon that he had in his hand. His explanation was not entirely complete when he said that it was entirely down to the market; I think that it was the opposition of the union and certain Labour Back-Benchers. It was a weapon thrown away. He might consider using it again in some way by assuring us that that Bill is not entirely dead.

Lord Mandelson: My Lords, I regard the Bill not as a weapon but as an opportunity, and one that is still much needed by this business. I hope that, in one way or another, it will be reintroduced successfully and enacted in the future.

Baroness Gardner of Parkes: My Lords, I am a great supporter of the Post Office. I look on it as a social service even as much as any other type of service. I do not think that the Secretary of State was in the House when I asked my Question about the effect on people filing paper tax returns, of which I am one of the many thousands. The Answer that I was given was that you would be able to hand in your papers at a post office and have a stamp put on them. I presume that the return would have to be contained within the post office until such time as the strike was over. However, I am more concerned about those people who have already put their tax returns into post boxes, of whom I am not one. Am I correct in thinking that no date stamp goes on them until they are processed? I am getting post now, if I get it at all, that is weeks old and the postmark on it is entirely different from the date inside the letter. How will the Inland Revenue be able to assess those people and be fair to them?

Lord Mandelson: Of course, I quite understand and sympathise with the noble Baroness's point of view and predicament, but HMRC will be able to tell where strike action has occurred and where it has affected the collection and onward dispatch of its forms. I think that she and other noble Lords can rely on the understanding and sensitivity that we have come to associate with HMRC, in what, let us hope, is still an avoidable storm.

Policing and Crime Bill

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	10th Report from JCHR
	15th Report from JCHR
	9th Report from DPC

Committee (5th Day)

Amendment 152ZA
	 Moved by Baroness Miller of Chilthorne Domer
	152ZA: After Clause 48, insert the following new Clause—
	"PART 4APolice bail
	Police bail before charge
	(1) The following provisions are repealed—
	(a) section 10 of the Police and Justice Act 2006 (c. 48) (police bail); and
	(b) Schedule 6 to that Act.
	(2) Article 3(i) of the Police and Justice Act 2006 (Commencement No. 2 Transitional and Saving Provisions) Order 2007 (No. 709 (c. 30)) (S.I. 2007/709) is revoked."

Baroness Miller of Chilthorne Domer: My Lords, last time we were in Committee on this Bill, we were discussing injunctions and the effect that they could have on the liberty of innocent people. We debated the issue at length. These amendments relate to a different interference with people who have faced no charge and no trial process. The amendments are to enable discussion of those issues and to suggest two particular amendments that the Government might feel inclined to take up.
	These amendments were provoked by events in April, when two protestors from Climate Rush, the climate change organisation, glued themselves around a statue in Parliament. In fact it was a statue of an ancestor of my noble friend Lord Falkland. They glued themselves to each other; there was no damage to the statue and no other damage. They were arrested under the Serious Organised Crime and Police Act 2005 and were given pre-charge bail conditions which stipulated that they may not talk with one another, even though they were clearly friends, and may not come within l kilometre of Parliament. The difficulty with that is that they were treated as guilty of something before that had even been established.
	These amendments deal with three kinds of bail: first, pre-charge bail at a police station, when there is enough evidence to charge under Section 37(7) (a) or (b) of the Police and Criminal Evidence Act 1984; secondly, pre-charge bail at a police station when there is not enough evidence to charge; and, thirdly, "street bail"—pre-charge bail given by a constable away from the police station under Sections 30 to 30D of PACE. I am particularly concerned about the power to apply conditions to pre-charge bail, because pre-charge bail conditions are control orders by another name.
	The power to impose bail conditions has grown steadily over recent years. They were introduced under the Criminal Justice and Public Order Act 1994. I would not dispute the fact that bail conditions for serious crimes are necessary. However, these powers were extended to pre-charge bail under the Criminal Justice Act 2003—but only in cases where there is sufficient evidence to charge an individual, so that was still probably within the bounds of reasonableness. Finally, the Police and Justice Act 2006 extended it to all cases where a person is bailed before charges are brought, even when there may not be sufficient evidence to charge them, including street bail.
	The Minister will remember that, in June, I tabled a series of Written PQs to ask how often pre-charge bail conditions are used and how often successful applications are made to vary conditions. He may remember his reply, that:
	"The information requested is not collected centrally".—[Official Report, 23/6/09; Col. WA265.]
	However, I did some research and it seems that the police are using these powers more, because at Westminster magistrates' court there have seen an increasing number of applications to vary pre-charge bail conditions in the past six months. That suggests either that more conditions are being imposed or that more unreasonable conditions are being imposed, as in the example I gave of the two friends who were not even able to talk to each other after being arrested.
	The Westminster magistrates' court also explained that no legal aid is available for applications to vary pre-charge bail conditions, so it is very expensive—indeed, it is impossible for people of limited means—to try to change the restrictions. Neither is there a statutory time limit on how long such conditions will last, nor any explicit restrictions on the sort of offences that they can apply to. The minimum restrictions that the Committee should expect the Government to put into statute are the length of time the conditions would last, and explicitly on applicable offences. A date must be given for a return to the police station, with conditions applying until that date. However, if the subject returns at the appointed date and the police have not completed their investigations, the conditions can be extended.
	I turn to street bail, which is a particularly worrying aspect of this. When bail is granted at the police station, the custody sergeant takes on a semi-judicial role in approving bail conditions. A custody sergeant has much more expertise and has had specific training, but an officer on the street is in the thick of it. He may not have had that training, and at that moment he may, indeed, not be able to make an objective judgment about the situation. It appears that some police forces agree with this assessment. Hampshire constabulary, for example, states in its procedural guidelines that,
	"Whilst the legislation has been amended to allow for conditions to be imposed upon 'street bail' this facility is not available within the Hampshire Constabulary area and officers may not impose conditions on such bail".
	Hampshire police say that they made a strategic decision not to use the powers to attach conditions to street bail because, without extensive training, officers would not be able to use the power proportionately—a very telling statement, and one that I hope the Minister will weigh. The officer also thought that a number of other forces have made the same decision not to allow officers to apply conditions to street bail. Thus, by using these powers to curtail peaceful protest—an issue we shall come back to in discussing some of the amendments on protest—the Met are completely out of step with how other forces are acting.
	My amendments put forward three different ways to deal with what is at present an unacceptable power. The common intention behind the three is to prevent the conditions from being used as a kind of improvised punishment or deterrence for people that the police simply feel are doing something wrong, instead of making them face a criminal charge and prosecution. Amendment 152ZB would limit the use of pre-charge bail condition to cases where an officer has reason to believe that a serious offence has taken place or is likely to do so.
	These are important amendments. During the passage of the Bill that relaxed these provisions, my noble friend Lord Dholakia said:
	"The conditions themselves could have a more severe impact on the suspect than any sentence imposed for the minor offence ... there is a risk that these conditions could be used in lieu of a criminal charge and prosecution. If reasonable time limits were imposed, it would remove that risk, requiring the police to investigate the case as quickly as possible and to decide whether to charge the suspect".—[Official Report, 4/7/06; col. 192.]
	My noble friend was absolutely right. It is a pity that we did not manage to persuade the House of the validity of his argument. However, on the basis of the further examples that I have given, I hope that the Committee will now rethink the issue. I beg to move.

Lord Skelmersdale: My Lords, the noble Baroness, Lady Miller, has set out her stall in her usual early afternoon extensive fashion. Therefore, I do not intend to speak beyond asking the Minister what I regard as a key question: have the Government any evidence of any inappropriate or disproportionate behaviour by the police in this regard? If he can answer that, I suggest that it would help the Committee no end.

Lord West of Spithead: My Lords, the noble Baroness and the Committee may be aware that the recent public consultation on the review of the Police and Criminal Evidence Act, known as PACE, recognised that bail at the police station was an area which would benefit from clarity of powers and the application of those powers. Therefore, I acknowledge that there is an issue here which needs examination, but I am unable to agree the proposed changes set out in these amendments. It is important that that examination is ongoing in discussions between the Home Office and the Ministry of Justice.
	I recognise that some noble Lords, and people in the wider community, view the application of conditions to bail before charge as a restriction on the liberty of the individual. Moreover, those concerns are compounded by the fact that such restrictions are placed on the individual not by a court but at the discretion of a custody officer or, in the case of street bail, the arresting officer. However, we need to look at the benefits of going down this route. The purpose of bail pre-charge is twofold. First, it is to ensure that a detainee spends as little time as necessary in police custody; for example, while other avenues of the investigation are pursued. It also frees up police time. Secondly, it is to ensure that, so far as possible, a released person remains available to assist with the investigation and does not interfere with the investigation or otherwise break the law.
	It is a matter for the custody officer to determine whether there is a case to answer and whether the suspect should be detained. That is determined on a case-by-case basis. Similarly, where a decision has been taken to detain a person, the custody officer and detention review officers will consider at regular intervals, as required by PACE, whether the grounds for detention remain.
	Similarly, on the use of street bail, it is for the arresting officer to determine whether the person should be brought before the custody officer for a decision on whether he or she be held in police detention, or whether the person can be issued with bail on the street. The latter benefits the individual, as I have said. It also helps free up officer time in travelling to and from the station and keeps them on the beat—we have been pushing across the board to keep policemen on the beat for longer—rather than in the police station.
	The noble Lord, Lord Skelmersdale, asked whether we had any evidence of inappropriate or disproportionate behaviour. We do not have any evidence of that at the moment although I note with interest the point raised by the noble Baroness on an incident around the Palace of Westminster, which I find surprising but I do not know the circumstances of the case.
	Consideration of bail does not mean that the investigative process has been completed, but that other elements of the investigation can proceed without the need for the suspect to remain in detention. That has to be good for the person involved. The application of discretion by the custody officer or, for street bail, the arresting officer, is an important element of this process. We have no evidence of inappropriate use of this power. What the noble Baroness said about Hampshire police was interesting, but the input that I have received is that, overall, the police are keen on this process. There must be training for the police to be aware of how to deal with this. I am a great believer in allowing discretion to people such as custody officers and police on the beat. I look on the issue in military terms as mission command—allowing people to get on with the job. Generally, one achieves a good result when one provides overall guidance, monitors it, but lets people get on with it.
	The custody officer has to consider on a case-by-case basis whether the person should be released on bail with or without conditions. The officer should consider whether it is necessary to attach conditions for the purposes of preventing that person from failing to surrender to custody; preventing that person from committing an offence while on bail; preventing that person from interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person; for that person's own protection; or for his welfare or his own interests, if he is a child or young person.
	Attaching conditions to pre-charge bail provides an additional opportunity for the person to be granted bail in situations where the custody officer may have some concerns. Removing the ability, as Amendment 152 Zulu Bravo proposes, to attach conditions to pre-charge bail, other than in relation to serious offences, may result in fewer detainees being released on bail. That would be an unfortunate by-product. That may well be an unintended consequence of the noble Baroness's amendment, but it is likely to be the actual outcome. I hope that noble Lords will agree that release on bail with conditions is more preferable to that person remaining in the confines of a police cell.
	If a person is not satisfied with the conditions attached to pre-charge bail, he or she may appeal in the first instance to the custody officer. They also have the option of applying to a magistrates' court to ask for conditions to be removed or varied. I was not aware of the legal aid issue, which I should like to take away to think about, because I am not sure of the exact situation. Perhaps we may need to look at that. The current system, therefore, enables an officer to deal with the individual and their particular circumstances. That has to be a good thing. This amendment would remove that ability and use of discretion.
	The timeframe of 72 hours proposed by Amendment 152 Zulu Charlie is highly unlikely to be operationally realistic. Bail can last for weeks, and sometimes months, depending on the nature of the investigation. The idea of a person going to and from the custody suite every three days for, say, two months, would not only involve significant police bureaucracy and resources but would cause significant disruption and no doubt some antagonism for the individual.
	Guidance on street bail, which the noble Baroness asked about, is available for officers when they are away from the police station. As a result of the PACE review, guidance will specifically cover conditions of street bail and pre-charge bail. Instructions are given on those aspects.
	The noble Baroness asked a question which I could not answer because the information was not collected centrally. I, too, did a little digging around on this. As a rough estimate, between 20 per cent and 30 per cent of people arrested are released on pre-charge bail, but we do not have precise figures.
	For those reasons, I ask the noble Baroness to withdraw her amendments.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for the fullness of his answer, which contained many useful nuggets. I was particularly happy when he said that the importance of training was evident. I should like to pursue that further at some stage and ask whether all police who use street-bail powers should be trained. The Minister was going in that direction and perhaps he could feed that into the ongoing discussions between the Home Office and the Ministry of Justice.
	I understand the timeframe issues that the Minister mentioned. There is a great balance to be struck between freeing up the police to do their job and be on the beat—I accept that that is very important; certainly we on these Benches are big advocates of the police spending as much time as possible on the beat—and ensuring that the rights of the individual are respected, a matter that still concerns me. I think that in the example I gave, when the seriousness of the crime is weighed against the onerousness of the bail conditions, the balance has failed. I may give some further examples when we discuss this matter again, but I do not want to take up the Committee's time further at this moment.
	I am very grateful to the Minister for saying that he will look into the legal aid issue, because it is very serious when an individual suffers onerous conditions. However, I am grateful for the issues that he said he will take up and I beg leave to withdraw the amendment.
	Amendment 152ZA withdrawn.
	Amendments 152ZB and 152ZC not moved.
	Clause 49 : Recovery of expenses etc
	Amendment 152A
	 Moved by Baroness Neville-Jones
	152A: Clause 49, page 33, leave out line 23

Baroness Neville-Jones: My Lords, the amendments in this group are probing and relate to the powers of confiscation, and the power to retain seized property that will become available to accredited financial investigators and to,
	"a member of staff of the relevant director".
	In another place similar amendments were tabled and the Government provided assurances about the training and monitoring of accredited financial investigators. However, there still remains the question of how appropriate it is to grant such significant powers to people who are not warranted police officers, officers of the Serious Organised Crime Agency or from Her Majesty's Revenue and Customs, and accredited financial investigators are simply defined by order of the Secretary of State. It would be very helpful if the Minister would confirm who is considered to be an accredited financial investigator and what plans, if any, the Government have to extend that definition. It is very important that we know the type of individual who is going to be doing this kind of job.
	There is also the question of how these investigators are to work alongside law enforcement officers. In their 2006 consultation document, New Powers against Organised and Financial Crime, the Government said:
	"Financial investigators are becoming more independent from police in their work and therefore to give them the full range of powers would be beneficial".
	My question to the Minister is: how can support staff be independent from the investigations and the law enforcement officers that they should be assisting?
	Finally, can the Minister confirm who is classed as,
	"a member of staff of the relevant director"?
	I am unclear about that. I beg to move.

Lord West of Spithead: My Lords, these amendments address the new provisions being added to the Proceeds of Crime Act 2002 and seek to prevent accredited financial investigators having access to the powers conferred upon them.
	I know that this is a probing amendment and it may help if I first provide some background. Accredited financial investigators are investigators who have been trained and accredited under Section 3 of the Proceeds of Crime Act by the National Policing Improvement Agency. They are not a new phenomenon. They were established under the 2002 Act and have been carrying out a very important role for more than six years. As new powers are introduced, so they are made available to accredited financial investigators where appropriate; that is all we are doing in the Bill.
	Accredited financial investigators were a very important policy leap forward under the 2002 Act. Previously, public authorities which wanted to undertake financial investigations—for example, the Serious Fraud Office and the Department for Work and Pensions—had to rely on warranted constables and Customs officers to conduct their investigations. That is not always the most efficient way to operate. The introduction of accredited financial investigators has allowed these public authorities to conduct their own investigations, making better use of the time and expertise of their staff and freeing up fully warranted police and Customs officers for all the many duties that they have to carry out.
	Investigators operating specifically under the Proceeds of Crime Act within SOCA and the Serious Fraud Office are all accredited financial investigators. These amendments would restrict the ability of those front-line important law enforcement organisations to play an effective role in ensuring that criminals do not profit from their crimes.
	It is important to note that the police have many financial investigators who are not warranted officers because that frees up warranted officers to do all the other things that the police need to do. Of the 1,011 accredited financial investigators, 53 per cent are non-warranted members of staff of the police. Anyone, whether warranted or not, must receive full training by the NPIA on the use of these powers before they are allowed to use them. Even if someone has been trained by the NPIA, an accredited financial investigator only has access to the powers in the Act if they are a member of staff of a body listed under an order made by the Secretary of State. That order lists approximately 20 public bodies. I could send the noble Baroness a list of those if that would help.
	The continued use of these powers is monitored strictly in accordance with the statutory authority vested in the NPIA. This monitoring takes the form of monthly activities and work-based evidence submissions via the NPIA's financial investigation professional register. Any incorrect use will result in the withdrawal of accredited status. We believe that it is entirely right that as accredited financial investigators who are trained and closely monitored, as I have just explained, they should also have access to the new powers, as they do to the current ones. For their organisations to have to rely on constables and officers of HM Revenue and Customs would be a retrograde step in financial investigation and asset recovery.
	That would introduce a differential and I repeat that these officers are not second-class investigators. The NPIA assures us that their professionalism in financial investigation at least matches if not betters that of the warranted police and HM Revenue and Customs officers involved. We are determined to stop criminals profiting from crimes and to reduce harm by maximising the effectiveness of asset recovery for the benefit of the community. It is important that these financial investigators have access to the full array of powers.
	Amendments 152A, 152B, 152C and 152D seek to prevent accredited financial investigators who act as receivers from deducting their expenses from recovered sums. An accredited financial investigator, as indeed anyone appointed by the court, can already act as a receiver. The amendments would therefore simply deprive these investigators of the ability to claim their expenses from the amounts that they recover, in contrast to the ability of all the other public officials listed in the new Section 55(8) to do so now. I do not believe there is justification for that. The rationale behind this provision is to encourage the use of in-house receivers. This applies equally to accredited financial investigators as it does to others.
	Amendment 152G seeks to remove,
	"a member of staff of the relevant director",
	from the definition of appropriate officer for the purposes of new Section 41A of the Proceeds of Crime Act 2002. New Section 41A as a whole provides for the Crown Court to authorise the retention under the terms of a restraint order when that property has been seized by an appropriate officer. The reason that,
	"a member of staff of the relevant director",
	is included is that, although such a person is not involved in confiscation investigations, they perform civil recovery investigations under the 2002 Act. They may therefore have had property produced to them while conducting a civil recovery investigation but that has been superseded by a criminal and confiscation investigation.
	If a restraint order has been made at the start of the later criminal confiscation investigation, property held as a result of the now defunct civil recovery investigation can continue to be retained so that it can be used ultimately to satisfy any confiscation order that is made. In the light of this explanation, I hope that the amendment will be withdrawn.

Baroness Neville-Jones: I thank the Minister for that full reply. My interest centres on the nature of the individuals to whom these quite extensive powers are being given and their relationship with warranted officers. My two points were: who are these people and, in the light of the language about independence, what is their relationship with the police?
	In talking about the training that these people get, could the Minister say what kind of people are employed to do this? Can he give the House some idea of the sort of individuals who are being given this considerable responsibility? What qualifications do they have in their background beyond the training that they receive?

Lord West of Spithead: The best that I can do is to say that these are people such as prosecutors, officers or members of staff of SOCA who have been designated by the DG of SOCA. I do not know off the top of my head what exact qualifications or what level of passes in certain things they have to have before they can be designated. I will get back to the noble Baroness in writing on that.

Baroness Neville-Jones: I thank the Minister. It would certainly be helpful to have in writing some clarification on that point. I will trust what he will tell me, and I beg leave to withdraw the amendment.
	Amendment 152A withdrawn.
	Amendments 152B to 152D not moved.
	Clause 49 agreed.
	Amendment 152E
	 Moved by Lord Bradshaw
	152E: After Clause 49, insert the following new Clause—
	"Confiscation orders by magistrates' courts
	The Secretary of State shall, within 12 months of this Act being passed, lay an order before Parliament to bring section 97 of the Serious Organised Crime and Police Act 2005 (c. 15) (confiscation orders by magistrates' courts) into effect."

Lord Bradshaw: My Lords, first, I have connections with a number of police forces. They are not professional connections, and I am not advocating anything on their behalf.
	In preparation for discussion of the then Serious Organised Crime and Police Bill, I took advice from a number of people, including an accredited financial investigator who is working for a police force and is head of that department and who appears to be a well qualified financier. I also took advice from an assistant chief constable. I asked them how the new legislation was working. They said, "Reasonably well, but it could be improved". I asked them how it could be improved, and they said that the real problem was that a lot of small criminals who are stealing things and the like come before the magistrates' court and either plead guilty or are found guilty, but the magistrates are not in a position to make a confiscation order if one is asked for either by the police, who may not be there, or by a representative of the Crown Prosecution Service, who may be there. They went on to say that in order to get a confiscation order it is necessary to proceed to a higher court. They then said that the judges and other people who make the lists in the higher court do not like dealing with confiscation orders for what they regard as trivial amounts of less than £10,000.
	I raised this matter with the Minister and the noble Lord, Lord Brett, when we had an opportunity for pre-legislative scrutiny, and I must say that there was a lot of shaking of heads on the other side of the table and what I would regard as squirming about by officials. I got no answer, and I was somewhat surprised the next day to find a message saying that the amendment is unnecessary because the powers already exist. I said, "Could you please show me, because I am assured by the police that they do not have the powers?". They said that the problem was that they were in a schedule. When I asked where the schedule was, they said, "It has not been published". When I asked why it had not been published they said, "Because of the need for training". Honestly, you do not need much training if you are an advocate in a magistrates' court to be able to make a simple order for confiscation.
	This is a serious matter because, first, it calls into question whether the Home Office is doing its job properly in publishing schedules in a timely manner. Secondly, what is the purpose of pre-legislative scrutiny if we do not get answers? If I am wrong, please tell me, because I will point out to the police officers where these powers are and where they have been hidden. In the mean time, I hope that the Minister has some authoritative answer for me. I beg to move.

Lord West of Spithead: I recognise that the power to lay an order under Section 97 of the Serious Organised Crime and Police Act 2005 has been in force for four years, but that no order has been laid. There is a little mea culpa here. The noble Lord, Lord Bradshaw, is absolutely right: this has been difficult for a number of reasons. The order would make provision to allow magistrates' courts to make confiscation orders under the Proceeds of Crime Act 2002. Currently, only the Crown Court has the power to make confiscation orders and it will continue to have this power. Magistrates' courts would be dealing only with low value cases of less than £10,000, as the noble Lord said.
	I realise that having order-making powers that remain unused appears to have wasted this House's time. That is not very clever, but there are reasons. The House scrutinised them in debate. However, that is not the case in relation to Section 97. It is government policy that asset recovery should be an integral part of criminal justice and we are constantly considering options to achieve this.
	Work has started on drafting an order under Section 97. Separately and importantly, we developed the Asset Recovery Action Plan—a consultation document launched in May 2007, which set out a range of new powers and proposals to ensure that criminals would not profit from crime. Many of these proposals are now included in this Bill.
	Also contained in that plan was a proposal to create a new, so-called, criminal benefits order, partly because of the problem we were having in getting the order used in magistrates' courts. We envisaged it as being limited to the benefit from the criminality for which the defendant had been convicted, and it would therefore not require a full financial investigation. It was contemplated that such an order may be made by a magistrate up to a value of £10,000—which made it similar to the last order we were discussing. However, the viability of this possible alternative option to the Section 97 order has not been settled.
	In the mean time, I can confirm that the option of an order under Section 97 is being progressed—we are now able to move this forward—and that necessary action is being taken. We will aim to ensure, if possible, that the deadline for laying any order is within the spirit of this amendment. Unfortunately, however, I am not in a position at this stage to make that firm commitment although that is what we are moving towards. I cannot make that commitment within these timescales, but with the undertaking that we are moving towards that, I hope that the noble Lord feels that he can withdraw his amendment.

Lord Bradshaw: I thank the Minister for his reply and for his honesty and frankness in giving it. I will study very carefully what he said and will consult again with the people who advised me. In the mean time, I beg leave to withdraw the amendment.
	Amendment 152E withdrawn.
	Clause 50 : Power to retain seized property: England and Wales
	Amendments 152F and 152G not moved.
	Amendments 152H to 152HB had been withdrawn from the Marshalled List.
	Clause 50 agreed.
	Clause 51 agreed.
	Clause 52 : Power to retain seized property: Northern Ireland
	Amendments 152J and 152K not moved.
	Clause 52 agreed.
	Clause 53 : Search and seizure of property: England and Wales
	Amendment 152M not moved.
	Amendment 152N
	 Moved by Baroness Neville-Jones
	152N: Clause 53, page 38, line 3, at end insert "and that use of such power is proportionate"

Baroness Neville-Jones: My Lords, the amendment concerns the use of search and seizure powers in circumstances where potentially no one has been charged with any offence. It would ensure that the power was used only in circumstances where it was appropriate to do so. In the other place, the then Minister of State for Security, Counter-Terrorism, Crime and Policing, accepted that,
	"the powers are potentially invasive and intrusive and that the police and others must exercise restraint and caution when using them".—[Official Report, Commons, Policing and Crime Committee, 12/2/09; col. 453.]
	However, at the same time, he expressed a doubt about needing to include a requirement in statute for law enforcement agencies to act in a way compatible with the European Convention on Human Rights on the grounds that they are automatically required to do so and that including such a provision would risk casting doubt on other pieces of legislation where such a requirement was not expressly included.
	At the same time, the Minister undertook to review the proportionality test and that is the subject of my question. What is the Government's position on this proportionality issue? I beg to move.

Lord West of Spithead: My Lords, this amendment provides that an officer's power to seize property under the new Proceeds of Crime Act must be exercised proportionately. I absolutely understand the reasoning behind the amendment and fully support the spirit of it. However, I suggest that it is unnecessary. With regard to the powers of the appropriate officer, police officers, for example, have a duty to act with appropriate discretion. The police are a public authority for the purposes of the Human Rights Act and so must act compatibly with individuals' human rights. Their powers must be used proportionately; they can be judged on that basis; they are trained to act on that basis.
	In addition, the powers of seizure must be exercised with prior judicial or senior officer authority unless that is not reasonably practicable. That is another level of oversight to ensure proportionality. We are also introducing a detailed code of practice and other safeguards to ensure that the powers are exercised proportionately in compliance with the ECHR. That code of practice will give guidance on proportionality in relation to the exercise of the powers.
	In conclusion, with those caveats—I think that this was a probing amendment—the amendment is important, but I have covered the points raised. I hope that I have been able to demonstrate that we are already covering those real issues of proportionality. On that basis, I hope that the amendment will be withdrawn.

Baroness Neville-Jones: Will that guidance be published?

Lord West of Spithead: As I understand it, it will be published, and I will let the noble Baroness have a copy of it.

Baroness Neville-Jones: On that basis, I beg leave to withdraw the amendment.
	Amendment 152N withdrawn.
	Amendment 152P had been withdrawn from the Marshalled List.
	Amendment 152Q
	 Moved by Baroness Neville-Jones
	152Q: Clause 53, page 38, line 34, leave out from "concluded" to ", and" in line 35

Baroness Neville-Jones: My Lords, I shall speak also to Amendments 152R and 152S. These are probing amendments which address what seems to us to be a pre-emptive power currently in the Bill. The conditions for the exercise of powers to seize property under Section 47C are various, and include the fact that an application by the prosecutor has been made and not concluded. However, they also allow an appropriate officer to exercise the powers if he "believes" that such an application should be made. That is my difficulty. Can the Minister tell us why that is—why he has to have a ground only of "belief"? What would constitute such a belief when such an application was made? What if the officer is wrong and an application is not actually made? We on these Benches consider that those powers must be exercised only when an application by a prosecutor has been made. I beg to move.

Lord West of Spithead: My Lords, as the noble Baroness said, the amendments would remove the proviso,
	"or the officer believes that such an application is to be made",
	from the conditions for exercising the new Act.
	Under the provisions of the Proceeds of Crime Act, if fresh information comes to light, it is possible to return to the making or varying of a confiscation order. That is entirely right. For instance, if a drug trafficker had successfully hidden assets at the time a confiscation order is made, if the assets are subsequently discovered, they should, in the appropriate circumstances, be available for confiscation. The provisions also cover absconded criminals, as they, too, should not escape the reach of confiscation. In cases which are returned to, and likewise with absconders, there is the potential for the assets to be dissipated. Indeed, this is historically what has happened, which is why the police have been so much behind the various measures. As assets may have already been hidden for many years, the risk is real.
	Accordingly, under the existing restraint order provisions in POCA, property can be frozen by court order. If an application is made for reconsideration, this could put a defendant on notice that his assets are in danger of confiscation proceedings, and so he could hide them again. This would defeat the purpose of reopening a case. Accordingly, the restraint provisions allow for assets to be restrained in advance of an application for reconsideration. This occurs only when the court believes that application is to be made. These restraint provisions have been in force and operating successfully for more than six years.
	The same considerations read across to the new provisions to search for and seize property. If an officer believes that an application for reconsideration is to be made, then the powers should be available to him to prevent the possible dissipation of illegally obtained assets, which is what happened in the past. In the light of this explanation, I hope that the amendment will be withdrawn.

Baroness Neville-Jones: Will the Minister explain why, if the officer believes that an application is to be made, he cannot find out? I am unhappy about him acting on the basis of a belief rather than on a fact that he ought to be able to establish.

Lord West of Spithead: My Lords, he needs to take action at that time, rather than going back and discovering what is going on, because there is the problem that the property will be dissipated.

Lord Lyell of Markyate: If the officer suspects that the assets may be dissipated but has no idea whether a prosecutor is going to make an application, is he entitled under this section to seize the assets?

Lord West of Spithead: I shall take note of that and get more detailed advice. I could talk through what I think is the case, but I would like to be absolutely sure of the situation.

Baroness Neville-Jones: My Lords, it would be helpful to have clarification on this point because, on the face of it, the circumstances that my noble and learned friend alluded to could arise. For the time being, I beg leave to withdraw the amendment.
	Amendment 152Q withdrawn.
	Amendments 152R and 152S not moved.
	Amendment 152SA had been withdrawn from the Marshalled List.
	Amendment 152SB
	 Moved by Baroness Neville-Jones
	152SB: Clause 53, page 39, line 36, at end insert "provided the defendant's employment, business or vocation is not a criminal activity or related to criminal activity"

Baroness Neville-Jones: My Lords, this is another probing amendment. The powers to seize property under Section 47C are limited and exclude cash or exempt property. Exempt property is defined as,
	"such tools, books, vehicles and other items of equipment as are necessary to the defendant for use personally in the defendant's employment, business or vocation".
	Exempt property also includes items such as clothing, bedding, and other items to satisfy basic domestic needs. If the individual's employment, business or vocation is a criminal activity, and that criminal activity is dependent on that equipment, is it exempt? I beg to move.

Lord West of Spithead: Under the Proceeds of Crime Act, there are currently no provisions allowing the seizure of property of a suspect to prevent its dissipation or devaluation in advance of the confiscation order. Clause 53 creates such powers. This was debated extensively in the other place and is now in a much improved state with further safeguards. I am not going to pretend these powers are minor or technical, and they need to be used in a proportionate, effective and focused manner. Section 47C introduces the term "exempt property". Under this section, property exempt from seizure includes property necessary for the defendant's personal use in his employment, business or a vocation. Amendment 152SB adds a further clarification that exempt property does not include property needed for employment, business or a vocation that is a criminal activity or related to criminal activity. While I fully agree with the spirit of the amendment, I suggest that it is unnecessary. The definition of "exempt property" is not new, and the one used in the Bill is an exact copy of the one used in insolvency and bailiff legislation: for example, in Section 283(2) of the Insolvency Act 1986. The same issues arise in that legislation as in the Proceeds of Crime Act: namely, that the seizure of property is necessary, but not to the extent that it prevents the individual making a living. It is implicit that the references to employment, business and vocation relate only to what is lawful. To introduce further criteria here would cast doubt elsewhere in the statute book.
	We also expect seizing officers and the courts to take the common-sense view that only lawful businesses should continue to operate. Indeed, this could be included in the code of practice, which sets out how these powers are to be exercised. Also, if the defendant has a complaint, he can seek redress through applying for a variation of the detention, whether this is authorised by a restraint order or a new magistrates' detention order.
	I hope that I have explained the issue in more detail and, in the light of that, I ask the noble Baroness to withdraw her amendment.

Baroness Neville-Jones: No doubt the guidance which the Minister has mentioned will also be published, and, on that basis, I beg leave to withdraw the amendment.
	Amendment 152SB withdrawn.
	Amendment 152T
	 Moved by Baroness Neville-Jones
	152T: Clause 53, page 40, line 2, leave out from "47G" to ", and" in line 3

Baroness Neville-Jones: My Lords, in moving Amendment 152T, I will also speak to Amendments 152U and 152X. Again, these are probing amendments, and they relate to seizure. The exercise of property seizure powers under Section 47C is allowed only where there is "appropriate approval", which is defined in Section 47G as,
	"the approval of a justice of the peace or (if that is not practicable ... ) ... a senior officer".
	I will come back to the level of judicial approval that should be required in our debates on later amendments. My concern here is that the Government's legislation will permit these powers to be exercised when,
	"in the circumstances, it is not practicable to obtain that approval before exercising the power".
	What circumstances are the Government referring to, or envisaging, in which approval would not be sought from a judicial figure?
	I am also not clear whether, if judicial approval is not sought, the appropriate officer is none the less always required to seek the approval of someone who is called, and defined as, a "senior officer". Will the Minister confirm that? If there are also circumstances in which it would not be practicable to obtain approval even from a senior officer—I have to say that I find that hard to believe—will the Minister give your Lordships' House examples of the sorts of circumstances in which that could arise?
	Although amendments have not been tabled to Sections 195C to F, which can be found on page 60 of the Bill and which include such powers to search a property, the same considerations certainly apply here. I beg to move.

Lord West of Spithead: My Lords, these amendments would require an officer to obtain appropriate approval in all circumstances before they could use the new powers to search for and seize property.
	These powers are modelled on the existing search powers under the recovery of cash in summary proceedings provisions in Chapter 3 of Part 5 of the Proceeds of Crime Act. These have been in successful operation since the end of 2002. Under those provisions, as well as under the provisions in this Bill, an officer should obtain the approval of a justice of the peace before conducting a search. If that is not practicable, he must obtain the approval of a senior officer—that is, an inspector or above. If that is not practicable, he can use the powers without such prior approval.
	A situation might arise in which an officer needs to act immediately to be able to search for and seize property. He might, for example, be searching premises for some other purpose and need to exercise these powers. In these circumstances it may be possible to get senior officer approval, say, by phone, but he cannot practically go off to court. The moment would have passed and the property may have gone. However, there is an expectation that appropriate approval should be obtained in cases.
	In addition, significant safeguards are attached to the operation of the search and seizure powers. If property is seized, court authority is required for its continued detention beyond 48 hours. If property is not seized following the exercise of the new search powers, or if seized property is not detained for more than 48 hours and judicial approval was not obtained, the officer will be required to report to the appointed person why he believes that the powers were exercisable and why it was not practical to obtain judicial approval. The appointed person is an independent ombudsman appointed under the Act to oversee the operation of the powers in the circumstances that I have outlined. There will therefore be independent oversight of the operation of these powers in all cases.
	A code of practice will provide guidance on the exercising of these powers. This is yet to be drafted, but it will be subject to a public consultation and will be debated in this House and the other place before it or these powers come into force. The draft skeleton of the code is set out in Annexe B of the Government's reply to the 10th and 15th reports from the Joint Committee on Human Rights. I hope that that explanation answers the probing points and, in the light of that, I hope that the amendment will be withdrawn.

Baroness Neville-Jones: Perhaps I may press the Minister a little further on seeking approval from the senior officer. Did the Minister say that, irrespective of whether he was able to obtain the approval of a judicial officer—a justice of the peace—an officer who was going to conduct such a search and investigation would be required and expected to get the agreement of a senior officer?

Lord West of Spithead: He will be expected, either by phone or something like that, to get an approval from an inspector. However, if he absolutely cannot get it, he can exercise his discretion, but he has a code of practice that will guide how he should behave in those circumstances.

Baroness Neville-Jones: It is hard to believe that in a telephonic age it is not possible to ring up and get agreement from a senior officer. It is very important that these powers do not appear to be exercised erroneously or arbitrarily. I appreciate the fact that there will be a code of practice, but some safeguards in law would be extremely helpful. I shall read this debate again in Hansard and I should like to consider what view to take. In the mean time, I beg leave to withdraw the amendment.
	Amendment 152T withdrawn.
	Amendment 152U not moved.
	Amendments 152V and 152W had been withdrawn from the Marshalled List.
	Amendment 152X not moved.
	Amendment 152Y
	 Moved by Baroness Neville-Jones
	152Y: Clause 53, page 41, line 34, leave out from first "of" to end of line 35 and insert "the Crown Court"

Baroness Neville-Jones: The Minister may have got on to the issue that I wish to raise now in his previous answer. The amendments in this group would require judicial authorisation for the use of powers in this part of the Bill to be provided by a Crown Court rather than a JP or a magistrates' court. Similar amendments were considered in the other place. These powers are sufficiently serious and the legal issues sufficiently complex that in our view the level of judicial oversight should be higher.
	In response to similar amendments in the other place, the then Minister of State for Security, Counter-Terrorism, Crime and Policing emphasised the procedural safeguards that would be set out in the codes of practice, but at that time those codes were not available. Can the Minister now confirm the position, because it is very hard to assess the validity of these assurances without seeing them?
	If, when we have seen the draft codes of practice, we accept that they provide for sufficient procedural safeguards, will the Minister confirm how the JPs will become familiar with these complex provisions? It has been suggested that a single justice of the peace would, and could, be properly equipped to hear detention order applications. Are the Government still considering that option? I beg to move.

Lord West of Spithead: These amendments relate to the new powers of seizure and detention that we are seeking to introduce into the Proceeds of Crime Act 2002. The powers will prevent the dissipation of or reduction in the value of property that may then be used in settling a future confiscation order. These are important additions, as they will add to the effective enforcement of confiscation orders once they are made. This is an important point: orders must be not only made but enforced. I do not pretend that they are minor powers, as the noble Baroness said, and in recognition of this, your Lordships will note that many safeguards are attached to them to ensure their proportionate and focused use.
	One of the safeguards is that of various stages of judicial oversight. These amendments address that issue. They are concerned with the appropriate courts for authorising use of the search and seizure powers, making an order for further detention of the seized property and dealing with appeals. The new provisions in the Bill are modelled on the cash search, seizure, detention and forfeiture provisions in POCA. We are not therefore breaking new ground here by giving the magistrates' court jurisdiction to provide authorisation for the use of search powers or to conduct detention order hearings.
	Similar issues that occur in the cash proceedings are likely to be raised under these new powers. It is also relevant that the magistrates' court is the enforcement authority for the purposes of confiscation orders under Section 35 of POCA. Issues relating to property and other matters that arise from confiscation orders have been before the magistrates' court since the enforcement powers under Section 35 were commenced in 2003. We believe that magistrates' courts are properly equipped to deal with the search and seizure powers and detention order cases.
	Under Section 290 of POCA, a JP provides prior approval for the use of the powers to search for cash. In circumstances where it is not practicable to obtain this, a senior officer can provide the prior approval. We base the appropriate approval provision in these new powers on that established and successful precedent. It is also of note that, if no judicial approval was obtained for the use of the powers and if no property is seized or any seized property is not detained for more than 48 hours, an officer must send a report to the independent person I talked about in my previous response. The report to the appointed person must detail why the officer believed that the powers were exercisable and why it was not practicable to obtain the approval of a JP. In cases where property is retained for more than 48 hours, it will be subject to judicial oversight by way of an application to a court for its continued detention.
	Due to the immediacy of some situations where an officer wants to use the powers to search for and seize property, it may be that a senior officer is available at the scene or is easily contactable. It would be fatal to the use of the powers if during an actual operation an officer had to obtain JP approval for their use. The immediacy of the moment would be lost and the property possibly dissipated. The alternative of a senior officer providing approval still provides for oversight. It is important to note that, if senior officer prior approval has been obtained but property is not seized or not detained for more than 48 hours, a report has to be made, as I have outlined.
	As regards detention hearings in those cases where property is subject to a restraint order, the further detention of that property after its initial seizure has to be authorised by the Crown Court. Cases that involve property of higher value or are complex are more likely to be subject to a restraint order. The use of restraint orders is increasing; their number has risen from 1,356 in 2007-08 to an estimated 1,664 in 2008-09. It is unlikely that a Crown Court restraint order would be sought in lower-value and simpler cases where smaller items of personal property may have been seized. In those cases, the application to further detain the property is made to the magistrates' court. We do not consider that it would be an appropriate use of the Crown Court's time to deal with such lower-order cases given the other business pressures that it continually faces. There is, however, an express right of appeal to the Crown Court against a decision of the magistrates' court not to grant an application to vary or discharge a detention order.
	I remain convinced that the Government's proposals in this respect are reasonable and proportionate and ask that the amendment be withdrawn.

Lord Lyell of Markyate: When the officer decides to seize something and says, "I am taking this", what does he do? Does he write down on a document that he has taken something and give that document to the person from whom he has taken it? How does it work in practice? One is a little worried because, while I well understand that this could be a useful power, it could also be an oppressive power. Whatever the hurry, a practical way of indicating the formality of the proceedings is probably necessary. Could the Minister say a word about that?

Lord West of Spithead: My Lords, the noble and learned Lord asks a good question. I do not know the precise detail or exactly what form is filled out. According to the code of practice, we have to provide the defendant with a listed description of the seized property, set out the conditions for retention and provide forms for applying for a retention order. Other matters, such as letting the person know where the property is stored, have to be taken into account when filling out the form. There is a whole raft of requirements laid out in the procedure. I am afraid that I do not know them off the top of my head, but they are all laid out there.

Lord Lyell of Markyate: I am grateful.

Baroness Neville-Jones: My Lords, I mentioned in my first intervention that at the time of the discussion in the other place the draft of the code was not available, but the Minister now has it in front of him. Is this now available to be seen by the House? It would be very helpful to see it before I take a final view on the amendment.

Lord West of Spithead: My Lords, it is available. I shall ensure that the noble Baroness receives a copy.

Baroness Neville-Jones: My Lords, for the time being, I beg leave to withdraw the amendment.
	Amendment 152Y withdrawn.
	Amendments 152Z to 152AC not moved.
	Amendment 152ACA had been withdrawn from the Marshalled List.
	Amendment 152ACB
	 Moved by Baroness Neville-Jones
	152ACB: Clause 53, page 42, line 22, at end insert—
	"( ) The Secretary of State must produce guidance on the qualifications required by a person appointed under subsection (4)."

Baroness Neville-Jones: My Lords, this is a probing amendment. When an appropriate officer exercises powers to seize or search property without judicial approval, that officer is required to provide a written report to an "appointed person". This written report must detail the particulars of the circumstances that led the officer to believe that the powers were exercisable and it was not practical to obtain judicial approval. We have already spoken about some of the sensitive issues involved. Having received these reports, the appointed person is required to provide the Secretary of State with an annual report on the exercise of the powers, including recommendations on how the system operates. What kind of individual would the Government expect to be appointed to this role? What would his or her qualifications and experience have to be? This individual will clearly emerge as an important person in the system, both helping to ensure that it operates properly and guiding its operations.
	I am unhappy that the Bill sets up a relatively lax regime for approving the use of search and seizure powers and then puts in place, in order to make it look good, an initial layer of bureaucracy to assess its functioning, but ex post facto. In many respects we would be much better off if we had a watertight regime in the first place. I beg to move.

Lord West of Spithead: My Lords, the Home Office makes appointments in line with the Office of the Commissioner for Public Appointments regulations, which are followed as best practice in all appointments. These regulations are publicly available. The selection process will therefore be an open and fair competition. The appointed person at the moment is Mr Andrew Clarke, who, to give an example of his background, has been specialising in criminal law since 1972; he was chief Crown prosecutor for the Crown Prosecution Service from 1986 to 1996 and is now a barrister in private practice. In the light of that, I hope that the noble Baroness will withdraw the amendment, unless she wishes me to go into more detail.

Baroness Neville-Jones: Given the regime that we have, a so-called appointed person is necessary. On the face of it, that sounds like an appropriate individual. I beg leave to withdraw the amendment.
	Amendment 152ACB withdrawn.
	Amendment 152ACC had been withdrawn from the Marshalled List.
	Amendment 152AD not moved.
	Amendment 152AE had been withdrawn from the Marshalled List.
	Amendment 152AF
	 Moved by Baroness Neville-Jones
	152AF: Clause 53, page 44, line 44, at end insert—
	"47MA Right of third parties to make representations
	(1) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before making an order under section 47M if it considers that the making of the order would be likely to have a significant adverse effect on that person.
	(2) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the variation of an order under section 47M if it considers that—
	(a) the variation of the order; or
	(b) a decision not to vary it;
	would be likely to have a significant adverse effect on that person.
	(3) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the discharge of an order under section 47M if it considers that—
	(a) the discharge of the order; or
	(b) a decision not to discharge it;
	would be likely to have a significant adverse effect on that person.
	(4) The Court of Appeal when considering an appeal in relation to an order under section 47M must, on an application by a person, give the person an opportunity to make representations in the proceedings if that person were given an opportunity to make representations in the proceedings which are the subject of the appeal."

Baroness Neville-Jones: My Lords, the Bill already provides that a person affected by a detention order can apply for the discharge or variation of that order, or appeal against any decision made on the order. The amendment would also give third parties with an interest in the seized assets the right to make representations to the court in respect of hearings or to authorise further detention. In the other place the Government agreed to consider the scope for allowing third parties the opportunity to make representations, and I would be grateful if the Minister would update your Lordships' House on where the Government have got to on that point. I beg to move.

Lord West of Spithead: My Lords, the amendment relates to the ability of third parties to be heard at an application, variation or discharge of a detention order or an appeal. This is a detention order made by a magistrates' court following the seizure and initial administrative detention of property under the new powers that we are seeking to introduce in relation to the Proceeds of Crime Act 2002.
	In the other place, the then Home Office Minister Vernon Coaker made it clear that we need to take account of third-party interests in detained property. We have looked again at this issue in consultation with the Ministry of Justice and I assure the House that our commitment to the interests of third parties can be met without the need for provision in the Bill.
	We can meet the commitment by amendments to the criminal procedure rules. The rules already provide for giving notice to third parties in other proceedings under the Proceeds of Crime Act 2002, so that those third parties can take part if they wish. The Criminal Procedure Rules Committee will be asked to amend the criminal procedure rules to give such third-party rights under these new powers, and we are confident that the committee will do so willingly. That will enable a third party to turn up in court and argue his case.
	With regard to the second and third limbs of the amendments, which look at third-party interests in applications to vary or discharge a detention order, there is already specific provision in the Bill on these matters. I refer in particular to new Section 47N(2)(b) of the Proceeds of Crime Act 2002, as set out in Clause 53. Equally, new Section 47O provides a right of appeal to any person affected by an order against a decision of a magistrates' court on an application to vary or discharge an order.
	I know that this was a probing amendment, and I hope that that explanation will allow the noble Baroness to withdraw her amendment.

Baroness Neville-Jones: My Lords, I thank the Minister for his reply and I beg leave to withdraw the amendment.
	Amendment 152AF withdrawn.
	Amendments 152AG to 152AK not moved.
	Amendment 152AKZA had been withdrawn from the Marshalled List.
	Amendment 152AKZB
	 Moved by Baroness Neville-Jones
	152AKZB: Clause 53, page 46, leave out lines 22 and 23 and insert—
	"( ) An appropriate officer must keep under constant review the detention condition and release the property if that condition is no longer met."

Baroness Neville-Jones: My Lords, this is a probing amendment. It would replace the existing requirement that sees property being released if at any time the appropriate officer "decides" that the detention condition is no longer met. It would instead require that the officer kept under constant review whether the detention condition was no longer met and release the property if it was not. In effect, I am saying that it would be good to have a procedure, not simply a requirement that could be exercised on no particular basis by the existing officer. I beg to move.

Lord West of Spithead: My Lords, Amendment 152 Alpha Kiwi Zulu Bravo—these amendments are getting rather long, aren't they?—essentially introduces an explicit provision that the detention of property must be constantly reviewed and that the property must be released if the detention provision is no longer met.
	Your Lordships will note that there are already a number of safeguards that accompany these new powers in recognition of the need to ensure their focused and proportionate use. The conditions for exercising the seizure power are set out in new Sections 47 Bravo and 47 Charlie(1). These require that an individual has been arrested, or proceedings have begun against him, and there is reasonable cause to believe that he has benefited from the offence. The officer must also have reasonable grounds to suspect that the property may be made unavailable for satisfying a confiscation order or that the value of that property may be diminished.
	In the other place, in recognition of the constructive debates on the powers, we introduced an amendment to place an explicit duty on an appropriate officer to release detained property if the conditions and reasons for its initial seizure no longer existed. This duty is set out in new Section 47R(2). I am satisfied that an explicit power to release property if it no longer meets the detention condition provides an implicit duty that the position must be reviewed regularly.
	In addition, we will ensure that a duty to review detention is included in the code of practice that has to be introduced under new Section 47S. We have already made such a commitment in the government reply to the 10th and 15th reports from the Joint Committee on Human Rights of Session 2008-09.
	Annexe B of that document sets out a draft skeleton for the code of practice. Significantly, a passage in it addresses the point, stating:
	"Ongoing consideration of the validity of the detention and duty to release if detention conditions no longer met. A senior officer undertaking a formal review of continued detention every three months".
	Your Lordships will note that the quote I have just given is not in full, grammatical English. That was not because I read it incorrectly, but because the skeleton code was drafted with bullet points rather than with full sentences. Your Lordships will have the opportunity to scrutinise the code of practice before the powers come into force. The order bringing the code into force is subject to an affirmative resolution of both Houses.
	In conclusion, I suggest that the provision that we have introduced, together with the requirement in the code of practice for a senior officer to conduct a review of the detention condition every three months, amounts to a strong and sufficient safeguard and certainly meets the spirit of the amendment.
	I fully appreciate the concerns expressed about controlling the new power of search, seizure and detention—indeed, I share them—but I am satisfied that there are sufficient safeguards and that the points raised by the noble Baroness are already addressed. In the light of my explanation, I hope that she can with withdraw her amendment.

Baroness Neville-Jones: My Lords, in light of the assurance that the codes contain an explicit process and provision for regular review, I beg leave to withdraw the amendment.
	Amendment 152AKZB withdrawn.
	Amendment 152AKZC had been withdrawn from the Marshalled List.
	Clause 53 agreed.
	Clauses 54 to 61 agreed.
	Clause 62 : Detention of seized cash
	Amendment 152AKZD
	 Moved by Baroness Neville-Jones
	152AKZD: Clause 62, page 75, line 9, leave out subsection (1)

Baroness Neville-Jones: My Lords, this is a very short, probing amendment. The Government have not explained in any of their notes why the period for which a court may authorise the further detention of seized cash is being increased from three to six months. It would be very helpful if the Minister could give an explanation. I beg to move.

Lord West of Spithead: My Lords, under the Proceeds of Crime Act 2002, the police, Revenue and Customs officers and accredited financial investigators have the powers to seize, detain and apply for the forfeiture of cash suspected of being the proceeds of, or funds intended for use in, crime. Forfeiture is subject to an order by a magistrates' court in England, Wales and Northern Ireland, or by the sheriff in Scotland.
	These powers have been hugely successful, with the forfeiture of more than £100 million of seized cash in England, Wales and Northern Ireland in the past three years. I am sure that what we are hoping to enact now will make it even more successful. The number of cash forfeiture orders made by the magistrates' courts has increased significantly during recent years, from 765 orders in 2005-06 to 3,223 in 2008-09.
	At present, when cash is seized, the seizing authority needs to get a magistrates' court or a sheriff to make a detention order, which then needs to be renewed every three months until, following the completion of the necessary investigations, an application is made for the cash to be forfeited. This process of renewing the detention order can be time-consuming for both law enforcement and the courts. Clause 62 extends the interim period during which cash can be detained from three to six months, which would result in fewer applications to the courts for continued detection, although parties will still have the right to apply at any time for the release of the detained cash. The maximum period of the detention of the cash, with recurring judicial detention orders, will remain at two years. The Government's proposals represent a fairly modest change to the existing procedures. They have the support of the police and the other law enforcement agencies. The amendment would leave the police and other agencies in the position they are now, which would be unsatisfactory, for the reasons I have given.
	After my explanation for the reasoning, I hope that the noble Baroness feels able to withdraw her amendment. After completing this debate, I apologise that I shall have to leave the Chamber because of other commitments, but people who are even better than me will be here to argue through the remainder of this Bill.

Baroness Neville-Jones: I thank the Minister for the reply. I beg leave to withdraw the amendment.
	Amendment 152AKZD withdrawn.
	Clause 62 agreed.
	Clauses 63 and 64 agreed.
	Amendment 152AKA not moved.
	Clause 65 agreed.
	Amendments 152AKAA and 152AKAB not moved.
	Amendment 152AKAC
	 Moved by Baroness Neville-Jones
	152AKAC: After Clause 65, insert the following new Clause—
	"Definition of European Framework List
	The Secretary of State shall produce guidance on the definition of those offences listed in Schedule 2 to the Extradition Act 2003 (c. 41) (European framework list)."

Baroness Neville-Jones: Under the European arrest warrant, British citizens can be extradited for ill defined offences that might not even constitute a crime in the UK or in many other European countries. This has been a concern since 2002, when the Home Affairs Select Committee considered this issue. The Committee said:
	"We have grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the member states of the EU makes it difficult for us to be ... confident ... that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute a criminal offence in the UK ... Our sense of unease is heightened when we look at the list of 32 offences specified by article 2.2 of the framework decision ... It is apparent that these offences are defined in generic terms and are probably better described as 'categories of offence'. As noted above, the UK Parliament has no power to amend them ... We asked the Home Office what information it has about how these offences are defined in other countries. The Home Office responded that it 'does not have detailed definitions of offences in the criminal justice systems of other EU member states'".
	Amendment 152AKAC would require the Secretary of State to produce guidance on the definition of those offences listed in Schedule 2 to the Extradition Act 2003. I beg to move.

Baroness Scotland of Asthal: My Lords, I hear what the noble Baroness says on Amendment 152AKAC, but that was listed together with Amendments 152AKAA and 152AKAB, and all of those issues require the judge to consider both the evidential standards and the EAW list of offences when considering forum. I am not sure what the noble Baroness feels that those amendments will do in relation to Amendment 152AKAC, because—if I may respectfully say so—both amendments conflate conceptually two separate issues. For example, conflating the dual criminality and the forum presupposes that an offence is punishable in the United Kingdom, which it may not be.
	We do not believe that this amendment is necessary, and invite the noble Baroness not to continue with it. As she will know, the evidential requirements on our extradition partners vary, and to penalise our most trusted partners for meeting evidential requirements seems unhelpful at best and, some might say, even bizarre. I am not aware of judges seeking guidance on interpretation of the list offences, and we feel that the current system is more than adequate.

Baroness Neville-Jones: My Lords, these are complex issues and the noble and learned Baroness the Attorney-General has written to Members of your Lordships' House addressing some of them, including this one. The issue that lies between us is whether there is imbalance in the evidentiary standards and how that jurisdiction is decided in cross-border cases. At this stage, we will consider her letter carefully, but I think we shall return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.

Lord Thomas of Gresford: The noble Baroness has not moved Amendment 152AKAA, and I give notice that I may well return to that myself on Report.

Lord Lloyd of Berwick: I was not quite sure which amendment we were on. However, if we are on what has been called the forum amendment, at this stage I certainly found the arguments that the noble and learned Baroness the Attorney-General advanced in the memorandum completely convincing—particularly, the arguments on the second bullet point on its last page and the example that she gave in paragraph 21. In short, it seems to me that the question of whether to prosecute must be for the prosecuting authorities, and it follows that the question of where to prosecute must also be for them. Where there are two competing jurisdictions, it can only be resolved by agreement between the prosecuting authorities in the two different countries. I cannot see how it could conceivably be resolved by a judge in this country.
	Amendment 152AKAC withdrawn.
	Clause 66 agreed.
	Clause 67 : Extradition to category 1 territory
	Amendment 152AKAD
	 Moved by Lord Thomas of Gresford
	152AKAD: Clause 67, page 81, line 33, at end insert—
	"(4) When proceeding under this section the judge must consider whether the extradition is barred under section 11, 21 or 25.""

Lord Thomas of Gresford: My Lords, this amendment and the ones grouped with it, which I put forward, are suggested to us by Justice. The proposed amendments to Clauses 67 to 69 deal with a gap in the application of the Extradition Act to circumstances where it is discovered that a person arrested has charges pending or is serving a sentence in the United Kingdom. The current power to defer exists only at the time of the extradition hearing, not before. We welcome the identification of this omission. However, we feel that bars to extradition should be addressed at the point when the request is made, not once the domestic matter has been resolved at some date in the future.
	There are, of course, a number of bars to extradition: the requesting country may retain the death penalty or may be guilty of torture; there is a passage of time bar; the crime has already been tried in another country; the defendant suffers from a physical or mental condition through which it would be oppressive or unjust to extradite that person. Those issues should be determined at the time of the request and not left until the defendant is released from whatever period of custody or imprisonment he may be undergoing in this country, because for the whole of his time in prison he will wonder whether the bars that he wishes to put forward will be accepted by the court. If the requesting state wants to pursue the warrant when he is released, it should do so at that point when it can reissue its request to this country, and bars to extradition could be considered at that point.
	Our amendment would obligate the judge or the Minister to consider bars or human rights implications at the requesting stage where the current and proposed legislation does not allow them to do so. I beg to move.

Baroness Scotland of Asthal: My Lords, I think I understand the basis on which the noble Lord makes his contention in relation to submissions, but I am afraid that I do not agree with him. In cases where a person who is the subject of an extradition request is serving a sentence in the United Kingdom, the Extradition Act allows a decision to be made about whether extradition should be deferred until the end of that domestic sentence.
	These amendments would require that, prior to extradition being deferred, the judge or the Secretary of State must consider whether any of the statutory bars to extradition apply. The thinking behind the amendments appears to be, as I understand it, that if on the facts of the case there is an obvious bar to extradition, this matter should be considered prior to deferral so that the criminal in question does not have the extradition proceedings hanging over his head while serving his United Kingdom sentence. While I can see the thinking behind this amendment, I resist it on three grounds: first, the terms of the Act make it unnecessary; secondly, the mischief the amendment is targeted at does not on closer scrutiny exist; and, thirdly, it would result in an unnecessary burden being placed on the extradition system.
	I shall deal first with necessity. It is important to note that if a person is serving a sentence of imprisonment in the United Kingdom, the Extradition Act makes it clear that whether or not extradition proceedings will be deferred is a matter for the discretion of the decision-maker. This means that the judge or the Secretary of State can look at all the facts of the case and decide whether in fact the proceedings should be deferred. This means in practice that in the rare case where an obvious bar to extradition is engaged, the subject of the extradition request would be able to trumpet this fact in arguing that the proceedings ought to be determined right away rather than deferred. There is, accordingly, scope within the legislative framework on deferral for the issues raised by these amendments to be fully and, I respectfully suggest, appropriately considered. That is why we do not believe that the amendments are necessary.
	As to the mischief at which the amendments seem to be targeted, I contest the notion that it is really that much of a hardship for someone serving a criminal sentence properly imposed by a United Kingdom court to know that at the end of a sentence they will be required to face extradition proceedings. The Extradition Act contains a wide range of safeguards which ensure that no one will be extradited from the United Kingdom without due process being observed and guarantees in particular that extradition will never take place where it would give rise to a breach of the European Convention on Human Rights. Your Lordships know that our courts are very jealous about their observance of those provisions. This is an important point to make, as it means that no one serving a domestic sentence and who is the subject of adjourned extradition proceedings need have any concern that they have the prospect of treatment contrary to the Human Rights Act 1998 hanging over them once the proceedings restart.
	My final observation on the amendments is that they would in most cases require the statutory bars to extradition to be considered twice—once prior to deferral of the proceedings and once again when those proceedings eventually resume. Given that the resources of our extradition system are already stretched, this, with the greatest respect to the noble Lord, Lord Thomas of Gresford, is unjustifiable. It simply does not, in our view, make sense for issues to be determined on a provisional basis well in advance of the potential date for extradition and then be considered for a second time at the point of extradition, by when those factors may well have changed.
	I understand why the noble Lord raises this issue, but I hope that he will say that his amendment was probing, he has had satisfaction and that we can happily put the issue to one side.

Lord Thomas of Gresford: Has a judge ever considered bars to extradition on an application by a defendant prior to adjourning the warrant? Are there any examples of that? That was the noble and learned Baroness's first reason. Her second was that it cannot really worry someone who is properly sent to prison that he might be extradited at the end of his sentence. That comment does not touch common humanity. Thirdly, she said that there would be a double hearing on the bars to extradition. Our proposals are that they should be dealt with once and for all at the time that the request is made, whereby, instead of adjourning the request, the judge would say, "There's an obvious bar to extradition here and I am putting an end to it". As I said in my opening remarks, there is no reason whatever why the requesting country in the years that pass—say, two or three years later at the end of the sentence—should not renew the request if it wishes to. The bars to extradition can be examined at that time.

Baroness Scotland of Asthal: My Lords, on the noble Lord's first question, the issue is whether the court has capacity to make those considerations, which it does. I have made it plain that the current structure enables the judge to look at that issue right at the beginning, that the ECHR is there to cover the middle and the end, and that the process which has worked well is that final consideration of extradition should be made once the United Kingdom's jurisdiction has been exercised. I still say that the noble Lord's amendments are unnecessary and, therefore, invite him to withdraw or not move them.

Lord Thomas of Gresford: My Lords, I shall certainly do that in a moment and consider what the noble and learned Baroness said about them. One thing that has emerged is that she has pointed the way for a defendant who is the subject of an extradition request to make his application to put the bars before the court at the beginning, rather than the end, of his sentence. I hope that practitioners will take note of that and use it. I beg leave to withdraw the amendment.
	Amendment 152AKAD withdrawn.
	Clause 67 agreed.
	Clause 68 : Extradition to category 2 territory
	Amendment 152AKAE not moved.
	Clause 68 agreed.
	Clause 69 : Person charged with offence or serving sentence of imprisonment
	Amendments 152AKAF to 152AKAP not moved.
	Clause 69 agreed.
	Clauses 70 and 71 agreed.
	Clause 72 : Return to extraditing territory etc
	Amendment 152AKB
	 Moved by The Earl of Onslow
	152AKB: Clause 72, page 90, line 3, leave out from first "the" to "with" in line 4 and insert "return is not compatible"

The Earl of Onslow: My Lords, this amendment arises from the Joint Committee on Human Rights. The Bill states:
	"Nothing in section 153A or 153C requires the return of a person to a territory in a case in which the Secretary of State is not satisfied that the return is compatible with the Convention rights within the meaning of the Human Rights Act 1998".
	We have suggested that the sentence should simply state that,
	"the return is not compatible".
	In other words, it is not a question of the Secretary of State being satisfied, just that the return itself is not satisfactory. This is simpler, better and less open to discretion and doubt. I beg to move.

Baroness Scotland of Asthal: My Lords, while I understand the aspiration behind the amendment of the noble Earl, Lord Onslow, and what he is trying to achieve, I will resist it on the basis that the provisions of Clause 72 already provide sufficient safeguards to ensure that the return of an individual pursuant to an undertaking is compatible with the person's fundamental rights. I heard the noble Earl say that there may be some lack of clarity on this issue. I assure him that it does not appear to have caused any difficulty to date and is working relatively clearly and very well.
	As the clause is drafted, the Home Secretary must refuse to return someone pursuant to an undertaking if their surrender would be incompatible with a person's human rights or their rights under the refugee convention. The European Convention on Human Rights reflects a clear duty imposed on all public authorities by Section 6 of the Human Rights Act 1998. The purpose of new Section 153D, to be inserted by Clause 72, is to make it absolutely plain that where the Secretary of State reaches the conclusion that to return someone pursuant to an undertaking would be in breach of his duty under the Human Rights Act or the refugee convention, nothing in the preceding provisions of Clause 72 requires him to act in breach of that duty. If the Secretary of State decided to return someone, but as a matter of law that decision would breach the ECHR or the refugee convention, his decision would be unlawful and could successfully be challenged by way of judicial review.
	I can categorically assure the noble Earl that nothing in new Section 153D seeks to suggest that the decision as to whether return would breach a person's human rights is a matter for the Minister's discretion. Whether or not return would breach the ECHR is a question of law and would be reviewed by the courts on that basis. I understand the anxiety of noble Earl, Lord Onslow, but I hope that I have been able to assure him that his concern about the discretion is not well-founded. We were alive to the problem and have sought to apply the salve before it was requested—confident, as we always are, that he would notice if we had failed in our duty.

The Earl of Onslow: I love being flattered by the noble and learned Baroness—it is very egoistic. I am grateful for what she said and of course I accept it absolutely. I still think that the matter would possibly have been slightly clearer and more concise with our suggested wording but, having listened to what she said, I beg leave to withdraw the amendment.
	Amendment 152AKB withdrawn.
	Amendment 152AKC
	 Tabled by The Earl of Onslow
	152AKC: Clause 72, page 90, line 4, after "with" insert "human rights, including"

The Earl of Onslow: My Lords, due to what the noble and learned Baroness said on the previous amendment, I do not think that there is any great point in my moving this group of amendments.
	Amendment 152AKC not moved.
	Amendments 152AKD and 152AKE not moved.
	Clause 72 agreed.
	Clauses 73 and 74 agreed.
	Amendment 152AKF
	 Moved by Lord Thomas of Gresford
	152AKF: Before Clause 75, insert the following new Clause—
	"Unlawful rendition and searching of aircraft
	After section 24B of the Aviation Security Act 1982 (c. 36) insert—
	"24C Police powers to search aeroplanes
	(1) If the Secretary of State has reason to believe that an aircraft that is in flight over the United Kingdom is or has recently been or may be involved in an act of unlawful rendition then he or she may require the aircraft to land at a suitable aerodrome.
	(2) If an aircraft is required to land in accordance with subsection (1), a responsible person must, as soon as practicable after the aircraft has landed, enter and search the aircraft.
	(3) The Secretary of State or a responsible person must enter and search an aircraft if he or she has reason to believe that—
	(a) an aircraft in an aerodrome is or has recently been or may be involved in an act of unlawful rendition; or
	(b) in respect of an aircraft in an aerodrome, incomplete or incorrect information under sections 32 and 33 of the Immigration, Asylum and Nationality Act 2006 has been supplied.
	(4) For the purposes of subsections (2) and (3), a search of an aircraft is to be carried out to determine if—
	(a) the aircraft has recently been, or may be, involved in an act of unlawful rendition;
	(b) a criminal offence has been committed; or
	(c) allowing the aircraft to continue on its journey could place the United Kingdom in breach of its obligations under the European Convention on Human Rights,
	but these powers may only be exercised when it is not reasonably practicable to apply for a warrant of entry in accordance with section 8 of the Police and Criminal Evidence Act 1984.
	(5) A person who carries out a search under this section may remove any items from the aircraft if it may be evidence of any of the matters set out in subsection (4).
	(6) In this section—
	"an act of unlawful rendition" means an act, not being in accordance with formal lawful extradition or deportation procedures, involving the forcible transportation of a person to a territory where he or she may be subjected to torture and inhuman and degrading treatment;
	"a responsible person" means—
	(a) the chief officer of police of a police force maintained for a police area in England and Wales;
	(b) the chief constable of a police force maintained under the Police (Scotland) Act 1967;
	(c) Chief Constable of the Police Service of Northern Ireland;
	(d) one of the Commissioners for HM Revenue and Customs;
	(e) a constable designated by any of the persons specified in paragraphs (a) to (c).""

Lord Thomas of Gresford: My Lords, this amendment is proposed by Liberty and its purpose is to introduce a new clause into the Bill to amend the Aviation Security Act 1982 that would bring new powers to direct a plane to land and to search that plane and any other plane already in the United Kingdom if there was reason to believe that the aircraft had been, or might have been, involved in unlawful rendition.
	Amendments similar to this proposal were tabled to the Civil Aviation Bill and the Police and Justice Bill in 2006 but, since then, things have changed. There is now an acknowledgement by the Government that planes transporting prisoners to countries where they face torture and inhuman and degrading treatment have come within the United Kingdom's jurisdiction.
	Therefore, the amendment creates a power to allow the Secretary of State to require any plane using United Kingdom airspace to land if he has information leading him to believe that the plane is being used for the purpose of unlawful rendition. It also creates a specific duty requiring that, if such planes are forced to land, they must be searched and if the Secretary of State, senior police officers or customs officers believe that a plane using United Kingdom airport facilities may be involved in unlawful rendition, there is a power to search that plane. That is not as draconian as it may seem because there are powers under other legislation to search planes but they do not cover all the circumstances involved in unlawful or extraordinary rendition. The amendment also gives a power to search an aircraft if there is reason to believe that incorrect or misleading information on the passengers, crew and flight path has been supplied.
	I do not propose to go into the admissions that have been made about the use of extraordinary rendition through United Kingdom airspace and property. The purpose of this amendment is not to consider what has happened but to look to the future so that concerns may be properly investigated. As I have already said, there are powers under customs legislation to search planes for smuggled goods, and the Terrorism Act 2000 (Information) Order 2002 gives police, immigration and HM Revenue and Customs the power to serve on the owner or agents of an aircraft in the United Kingdom a notice requiring details of the crew and passengers, but that is limited to cases involving terrorism. Therefore, there is a gap and that gap justifies the creation of additional powers such as we propose in this amendment. I hope that the noble and learned Baroness will see fit to accept it. I beg to move.

Baroness Kennedy of The Shaws: My Lords, I support the amendment and do so knowing that I speak for many people who have been horrified to learn of the procedure of rendition and the great taint that it places on legal systems throughout the world. To find that a country such as the United States of America has been involved in moving prisoners to places where they can be tortured with greater impunity seems to be one of the scandals of modern times.
	Also scandalous is the idea that other countries have in any way made that process possible. We know that allegations have been made that the United Kingdom is one such country. While that matter is no doubt a subject of debate and denial in certain quarters, I should have thought that the amendment would seek to allay any fears or concerns that such a process might be conducted in any way using British airspace or airfields in the manner that has been described. I hope that this Government will make it very clear not only that they oppose torture but that they do not in any way make it possible and that in fact they will introduce any steps that can prevent our nation being lent to this disgraceful practice.

Baroness Scotland of Asthal: My Lords, I apologise to my noble friend for rising too quickly. I say both to my noble friend and to the noble Lord, Lord Thomas of Gresford, that the amendment is unnecessary, but I join with them very strongly in their condemnation of torture and unlawful rendition.
	As the noble Lord, Lord Thomas of Gresford, has made clear, this issue has been debated extensively in your Lordships' House on a number of previous occasions, particularly, as was mentioned, during the passage of the Civil Aviation Bill and the Police and Justice Bill in 2006. A similar amendment was also tabled at the Committee stage of this Bill in another place.
	The main thrust of the proposed new clause is to amend the Aviation Security Act 1982 to provide the Secretary of State with a specific power to direct an aircraft overflying the United Kingdom to land and be searched if it is believed to be involved in an act of unlawful rendition. However, Article 3bis of the Convention on International Civil Aviation—the Chicago convention—already allows a state to require a civil aircraft to land if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of that convention, and on that basis we say that the amendment is unnecessary.
	Further, the amendment throws up a number of practical difficulties. First, it would require an aircraft that had been directed to land, or any other aircraft already in the United Kingdom, to be searched if the Secretary of State had reason to believe that it was, had recently been or might in future be, involved in an act or acts of unlawful rendition. However, the degree of suspicion required to trigger this power is unclear and, at its lowest, could include any allegation whether supported by credible evidence or not. Although the amendment seeks to address what I believe to be a very serious issue—and I recognise that it will not always be easy to establish clear evidence that an act of unlawful rendition is in the process of taking place in sufficient time to act upon it—directing an aircraft to land is a significant step and any such direction should, in propriety, be based at the very least on a reasonable suspicion of current involvement in wrongdoing.
	A further problem is that the entry and search of an aircraft could be based on a suspicion of past, albeit recent past, or future use of that aircraft for extraordinary rendition purposes. Allegations of past misdeeds, whether proven or not, are no evidence that acts of rendition are taking place on the current flight. Further, all aircraft could potentially be used for such purposes and, taken literally, the proposed new clause might place every aircraft landing in the UK at risk of being entered and searched. I know that is not what the noble Lord would wish; neither do I think it is the intention of my noble friend.
	Of additional concern is the fact that the proposed new clause provides no discretion when it comes to the entry and search of an aircraft if reason to suspect recent past, present or future involvement in unlawful rendition is established. Even if evidence were subsequently discovered on board the aircraft, that would not of itself mean that the crew or individuals on board at the time of the search were necessarily culpable of an offence or indeed that an offence had actually taken place on that flight. If evidence were found that the aircraft had recently been involved in an act of unlawful rendition, it is not clear how this evidence would be used. I know that both my noble friend and the noble Lord are vociferous and rightful campaigners on individuals' rights. I can just hear what they would say if that were the purpose.
	The police already have the power to search premises, including aircraft, under warrant. Indeed the proposed new clause clearly envisages a responsible person, in the normal course of events, applying to the court for a search warrant. Applications for search warrants are made under Section 8 of the Police and Criminal Evidence Act 1984 and a warrant will be granted where a justice of the peace is satisfied that there are reasonable grounds for believing that an indictable offence has been committed, that there is relevant, admissible evidence on the premises and that one of the conditions in Section 8(3) is satisfied. However, it is not clear from the amendment what a responsible person would be expected to do if a warrant of entry was applied for but refused by the court on the basis of insufficient grounds. Nevertheless, we believe that where a search warrant has been successfully obtained, this could be used in the case of an aircraft that had been required to land under the provisions of the Chicago convention.
	I hope I have explained, as I believe others have before me on a number of occasions, that the Government have made it clear that we do not and will not grant permission for UK airspace or territory to be used for any unlawful rendition. If the United Kingdom's security and law enforcement agencies received intelligence that could give rise to the types of action envisaged by the proposed new clause, on a timescale that would permit such action, the aircraft would either be refused permission to enter United Kingdom airspace or be directed to land in accordance with the existing provisions of the Chicago convention. Although we shall continue to keep these powers under review, we respectfully suggest that the proposed amendment is simply unnecessary.
	I understand my noble friend's anxiety about this and her determination for our country not to be misused and, I would say, abused in this way. I absolutely understand the desire of the noble Lord, Lord Thomas of Gresford, to ensure that that commitment is not only maintained but holds true. It is a proper matter for us to debate and I am more than happy to give the assurance that this Government's position has not changed in relation to it.

Lord Thomas of Gresford: I am most grateful to the noble and learned Baroness for her reply. I had hoped to spend much of this afternoon debating the probable cause in the fourth amendment of the United States constitution and Section 8 of the Police and Criminal Evidence Act and how the two vary and differ. Unfortunately, we have been spared that debate and I hear her criticism that this amendment does not set out a standard by which a magistrate or a judge could issue a warrant for the searching of an aircraft in the circumstances that we have discussed. I accept that criticism and I shall look at the amendment. I do not know whether I shall bring it back again but I am grateful to the noble and learned Baroness for her response. I beg leave to withdraw the amendment.
	Amendment 152AKF withdrawn.
	Clause 75 : Provisional arrest
	Debate on whether Clause 75 should stand part of the Bill.

Lord Thomas of Gresford: We have given notice that we oppose the question that Clause 75 stand part of the Bill. In so doing, we are supported by Liberty. Currently, a person may be arrested under the Extradition Act 2003 if a constable, a Customs officer or a service policeman has reasonable grounds to believe that an arrest warrant for that person's extradition has been or will be issued. Once a person has been arrested under this power, he or she must be brought before a judge within 48 hours and documents setting out the legality of the arrest must be provided to the judge; that is to say the extradition request and the documents which have to accompany it.
	Clause 75 permits the requesting state to apply to a judge to extend the period of 48 hours within which it must produce the documents. Our view is that, if a request is made for the extradition of someone from this country, everything should be in order before the person concerned is arrested. According to Clause 75, a judge can grant the extension if he or she decides that the documents could not reasonably be produced within the initial 48 hours. In calculating the period of 48 hours, no account is to be taken of weekends or public holidays. The requesting country now has 48 hours, plus 48 hours, plus a weekend or a public holiday. That means that someone could be arrested and held for a very long period without knowing why.
	The government amendment would allow for a person to be detained without charge for upwards of six days. It is a clear interference with the right to liberty and it must be demonstrated to be necessary and proportionate. The Government have not given us a reason why it is necessary to give a requesting country more time to produce the documents. It may just be a matter of administrative convenience but some of us will know that a High Court judge is available at any time of day or night in extremis. There is no need for people to be held in custody just for the purposes of administrative convenience. That is why we oppose Clause 75 and I look forward to hearing the reply of the noble Baroness.

Baroness Neville-Jones: We share the view that it should not be necessary to extend the period in this way. There is an obligation on the requesting country to meet the requirements of the extradition procedure as soon as possible. It seems to be a case of administrative convenience rather than fairness to the individual concerned.

Baroness Scotland of Asthal: I understand the way in which the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Neville-Jones, put their points but there are a number of practical issues which we need to bear in mind. The first, as the noble Lord will know, is that the designated judge for extradition cases is a district judge and not a High Court judge. The reason, as the noble Lord will be aware, is that for a long time in central London the principal district judge has developed a real expertise in this area and there are a number of other designated specialist district judges who cover this. This jurisdiction is not a jurisdiction which is exercised by a High Court judge. I am very familiar with the 24-hour duty judge system which is available in the High Court but we are dealing with the position which pertains in the district court, which has the role of discharging this function.
	The European arrest warrant system provides a very effective and efficient means by which extradition can be conducted between member states of the European Union. As my honourable friend Vernon Coaker made clear in the other place when this matter was debated, such urgent and complex cases requiring member states to ask one another to arrest someone before a full European arrest warrant has been issued are rare. Where the United Kingdom receives such a request and there are reasonable grounds for believing that the full European arrest warrant has been or will be issued, it is open to UK law enforcement officials to arrest the person in question. Sometimes there is information that the person is coming through our country, is at an airport or somewhere where it is possible to arrest them and time may be of the essence.
	Where someone is arrested somewhat unusually under the provisional arrest powers found in Section 5 of the Extradition Act 2003, Section 6 requires that the person be brought before a court and the full European arrest warrant provided to the judge within 48 hours of arrest.
	In most cases, that mechanism will work effectively and without difficulty. However, there are very rare occasions when that rigid time limit causes operational difficulties. The first such instance is where the 48-hour period falls over a weekend or public holiday. Where that is the case there will often not be a court sitting to deal with the person provisionally arrested within 48 hours, which under the terms of the Act would enable a potentially serious criminal to apply to be discharged.
	The second situation is where the seriousness and complexity of the case means that the authorities in the other member state are simply unable to provide the relevant information within the 48-hour period. In such cases, it should be possible to apply to a judge for a further 48 hours within which to produce a full European arrest warrant and to bring the person in question before the court. Such an application would be made on notice to the person affected and an extension would be granted only where the judge was satisfied that the conditions in Section 6 could not reasonably have been complied with within 48 hours. There would also be an opportunity for the person arrested to apply for bail.
	It is also important to consider the context of the time limits in the legislation of our EU partners. For instance, Italian domestic law provides for a person to be held for up to 10 days subject to a provisional arrest request. In France a person may be detained for six days before the full European arrest warrant must be produced. Both those countries have of course incorporated the requirements of the European Convention on Human Rights into their domestic law.
	In conclusion, this provision will not only contribute to greater public safety on British streets, but ensure that we co-operate effectively with our EU colleagues in tackling serious and organised crime. The European arrest warrant is working well in the United Kingdom, but this clause will ensure that it is even more effective in bringing serious criminals to justice. I beg leave that this clause stands part of the Bill.

Lord Thomas of Gresford: My Lords, I am familiar with the fact that the jurisdiction of the chief magistrate in Bow Street, like Bow Street magistrates' court, has gone, and that the jurisdiction has been spread among the district judges and one particular district judge who heads the team. However, the fact that the court is not sitting is not a good reason for someone to sit in prison without any knowledge of why they are there—without the documents having been served on them. I am sure that the district judges could have a system akin to the High Court system whereby a district judge is available on duty all the time. I am surprised to hear that that is not the case. The fact that the court does not sit at weekends is not a good enough reason. I will consider what the noble and learned Baroness has said and I thank her for her reply.
	Clause 75 agreed.
	Clause 76 : Use of live link in extradition proceedings.
	Amendment 152AKG
	 Moved by Lord Thomas of Gresford
	152AKG: Clause 76, page 92, leave out lines 37 and 38 and insert—
	"(i) an initial hearing;
	(ii) an extradition hearing within the meaning of that Part;
	(iii) an appeal under section 26 or 32;
	(iv) a hearing under section 54 or 56,"

Lord Thomas of Gresford: This deals with live links in criminal proceedings. Live links can be very useful, but they have their limitations. The main limitation is quite practical: there are not enough live-link studios in courts or prisons to enable there to be suitable conference facilities for lawyers representing an accused person. Although it may be efficient for a prisoner not to be brought to court, it causes considerable difficulties.
	I have no objection to live links being used on the renewal of applications to hold a person in custody or matters of that sort, but for someone who has been subjected to a request for extradition and arrested under a European arrest warrant or by reasonable warrant from another country such as a part 2 country, it is important for there to be proper opportunities for their lawyers to consult them and for the court to have before it the body of the person who has been arrested. We suggest that at an initial hearing there should be no live links, and nor should there be at the actual extradition hearing or appeal—except with the consent of the person concerned.
	Quite recently, I represented somebody from Belgium who was held in one of Her Majesty's prisons in London. He did not come to court for the whole of the proceedings—not even to plead or be sentenced—because he was suffering from sciatica. Those who have suffered from sciatica will know that you would not wish to be carried in a prison van across London under any circumstances. Accordingly, he consented to the use of a live link. The difficulties that I have expressed to your Lordships were then apparent to me but, nevertheless, because the client consented, that was sufficient. But what is proposed here is that the initial hearing and the extradition hearing could be held without the consent of the person concerned. That is going too far.
	One of the purposes of a judicial hearing should be to monitor the manner in which the detained person is being held to see if there are any complaints. Another difficulty arises with translation. If the person who has been arrested cannot speak English, it is extremely difficult to communicate over a live link with an interpreter present. It is quite different when the interpreter is present with the particular person in court. Any difficulties can then be ironed out, but with a live link it is very difficult indeed. In fairness to those who are simply unconvicted and arrested under these provisions—they are not to be regarded as criminals—I suggest that live links without their consent is a step too far. I beg to move.

Baroness Scotland of Asthal: My Lords, in order to understand the context of the noble Lord's amendment, we should look at how this matter is dealt with in practice. The first point to make about Clause 76 is that there is currently only one court in England and Wales that hears European arrest warrant and extradition cases. If a person is arrested in Durham, for example, that person is currently required to travel to London for both the initial hearing and any subsequent remand hearings that there may be.
	In the vast majority of cases, the initial hearing is very short and looks only at whether the person is in fact the person sought by the request, and whether the offence for which the person is sought is an extradition offence. Those are the two matters addressed at the initial hearing. It is also important to note that Clause 76 will not apply to the substantive hearing, where the subject of the request will be able to make detailed representations in relation to the extradition request in person.
	The second point to make is that a live-link direction will be made only where the judge decides that it is in the interests of justice, and that there is a specific power in the Bill pursuant to which a judge may rescind a live-link direction before or during a hearing. Although I understand the noble Lord's concern that there could, in a given case, be a problem with interpretation via a live link, in the unlikely event that that occurs, the judge would have the power to rescind the live-link direction where it would not be in the interests of justice to continue. The hearing would then be adjourned to take place at a later date in person, and the person would be driven from wherever they happened to be in the country to London to be heard.
	It is important to understand that the noble Lord's amendments would have two principal effects. First, they would further limit the kinds of hearings that can take place via a live link by excluding initial extradition hearings from the scope of the provisions. I hope that he will accept that live-link connections are advantageous and that good evidence is heard through that medium. Furthermore, the amendments would mean that live links could take place in any case where an interpreter is required. Therefore, the effect of his amendments would be to drastically limit the use of Clause 76.
	We are satisfied that there are sufficient safeguards to ensure that the provision works fairly and in the interests of justice. Most importantly, the provision will remove the need for lengthy and unnecessary journeys frequently made to the City of Westminster magistrates' court in London and ensure that the public's money is not wasted in paying for those journeys, especially when the two issues that we want to understand are, first, whether the person arrested is the right person and, secondly, whether the offence for which the EAW was issued is an extraditable offence. Those are the only two matters decided in the initial hearing, and we think that the judiciary can be trusted to identify any injustice in the matter continuing by live link. If the judge is alerted to that being unfair, he or she can stop it and the matter can proceed on an adjourned basis.
	The suggestion that Clause 76 would allow the main extradition hearing to be by live link is simply not correct. I invite noble Lords to read new Section 206A(1)(a)(i). Your Lordships will see that we anticipated that that might be a concern. We have restricted the provision narrowly to focus on the initial hearing because we absolutely accept that the initial hearing can properly be done by live link. The substantive hearing could be by live link, as the noble Lord said, if the individual consented and thought that it was more convenient, but Clause 76 does not apply to the substantive hearing. It only lets us get the case in order in a way that is cost-effective, as opposed to just cost-efficient. I know that noble Lords will think that Her Majesty's Treasury right now needs to be appropriately jealous about how it spends money, especially on travel.

Lord Thomas of Gresford: My Lords, I am not so much concerned about the Treasury's expenditure; I am much more concerned with the justice and liberty case. The noble and learned Baroness says that the initial hearing is often very short. It may be short in court, but there is frequently a period when advice has to be given, instructions have to be taken, and it is important that the person be there for those purposes. However, I am heartened by her emphasis that it is always for the judge to determine whether it is in the interests of justice, and to note something that I had obviously overlooked—that the hearing itself cannot take place by live link unless the defendant consents. Those are very important reassurances, which I hope will be carried up and down the breadth of the judiciary who may have to deal with these cases. On that basis, I beg leave to withdraw the amendment.
	Amendment 152AKG withdrawn.
	Amendments 152AKH and 152AKJ not moved.
	Clause 76 agreed.
	Clause 77 : Security planning for airports
	Amendment 152AL
	 Moved by Baroness Neville-Jones
	152AL: Clause 77, page 95, line 24, at end insert—
	"( ) The Serious Organised Crime Agency may at any time nominate one individual to be a member of the group.
	( ) The Secretary of State may at any time nominate as a member of the group an official of the Secretary of State who exercises functions relating to immigration.
	( ) The Secretary of State may at any time nominate as a member of the group an official of the security services.
	( ) The group must permit a representative of the police authority for the relevant police area to attend meetings of the group as an observer.
	( ) The group must permit an individual who appears to the manager of the aerodrome to represent the interests of the operators of aircraft who take off from, or land, at the aerodrome to attend meetings of the group."

Baroness Neville-Jones: My Lords, Amendments 152AL, 152AM, 152AS and 152AT are probing. They relate to the membership of risk advisory groups and security executive groups. Amendments 152AL and 152AM probe why the membership of the risk advisory groups—that is, the bodies charged with determining the risk profiles at airports—is different from the membership of the security executive groups. In particular, the UK Border Agency and SOCA are not included. Does that suggest that illegal immigration and organised crime are not threats that affect or make use of airports and air transport? That seems on the face of it rather odd.
	Amendment 152AM follows from those amendments. Does the Bill provide for the Secretary of State to appoint individuals from those organisations to attend meetings of the group? How will the group operate? Will it be flexible? The question remains: why are those organisations not members of the risk advisory group? Why is there a discrepancy between that group and the security executive group? Is that just an oversight, or is there a deliberate difference and, if so, why?
	Amendments 152AN and 152AM concern what is called level 2/3 policing. In the other place, the Government rejected an amendment that would have required the chief officer of police in that airport area or a chief officer of police of another force with a lead for level 2/3 policing to be a member of those groups. That was on the following grounds: first, that the force in the area where the airport is located should have responsibility, because the chief constable of that force is ultimately responsible for the police services agreement and has to sign it off; secondly, that it would cut off links with the local community or hamper community intelligence; and, thirdly, that the Minister was sure that, where there were collaborative arrangements because of the location of airports, the chief constable of the local police force would in any event consult other forces, even if he was not in the lead. In effect, this is a compromise amendment to allow both for the local chief constable to be a member and the lead chief constable for any collaboration agreement to attend as an observer. It is important to try to bring those two together.
	Finally, Amendments 152AL and 152AS would allow the Secretary of State to nominate as a member of those groups an official of the Security Service. That seems entirely appropriate. I am surprised that a similar nomination is not made in relation to the Centre for the Protection of National Infrastructure. The question is: should not the CPNI also be formally represented on those groups, given that airports are a part of the country's critical infrastructure?
	The final amendment in the group, Amendment 15AU, is a probing amendment to determine why it is necessary for separate groups to exist if an individual may be a member of both groups. That seems a bit bureaucratic.
	The amendments tabled by the noble Lord, Lord Bradshaw, would allow an aerodrome manager to procure the services of another police force from another relevant police area or from alternative police providers approved by the Secretary of State. These proposals pose some difficulties of jurisdiction, but I agree with the amendment that requires that, in determining disputes about the cost of policing, the Secretary of State should have regard to whether an alternative police provider would make a different resource judgment based on identified risks. I beg to move.

Lord Bradshaw: I have tabled a number of amendments in this group on the policing of aerodromes. The representations that have been made to me are that the chief constable of an area is in a monopoly position in selling his services to the airport operator and, what is worse, the airport operator has no option but to accept the bill that the chief constable sends him. This is foreign to much of the way in which commerce is conducted. While policing services are not commerce in the ordinary way, they are services. I am talking not about allowing anybody who puts himself up as a security agent to provide airport security services but about using properly warranted police officers. In most of my amendments in this group and the next, I am arguing that the airport operator should have a choice. If he receives a policing plan that he regards as extravagant, he should have the option of going to another warranted police force or, at least, of appealing to the Secretary of State if he is being, in his view, put upon.
	I cite a totally anonymous example of an airport where the chief constable is, shall we say, a little afraid of his shadow; he opts for providing an armed police service at the airport, which is left with no alternative, as the Bill stands, but to pay up. I can assure noble Lords that a number of airports are not in a position to pay for expensive services.
	I suggest that there are several possible alternatives. If you were the airport manager at, say, East Midlands Airport, the Leicestershire, Derbyshire and Nottinghamshire police forces are in close proximity and a competitive tender for the provision of policing services could be sought from each chief constable. If you were at Gatwick, you might choose to go to the Sussex Police or the British Transport Police, which is already on the premises, to provide policing services. I know that one of the objections voiced by officials is that the British Transport Police does not have armed officers, but it guards probably the most iconic target for terrorists in this country—the London Underground. It can call on armed officers if they are required, although one wonders what, in the close confines of the Underground or certain airport terminals, armed officers would actually do because of the problem of collateral damage.
	I have described my amendments and shall be interested to hear what the Minister has to say in reply, because it is typical business practice these days that wherever possible people should have an alternative if someone is seeking to provide a service from a monopoly position.

Lord Berkeley: My Lords, I support the amendments tabled by the noble Lord, Lord Bradshaw. We are talking about a situation where the users are paying for the specific work of policing at airports, which is not normal. To some extent, the police authority has the airport over a barrel. It will decide and say how much it is going to cost.
	I had this experience 20 years ago when I was working on the Channel Tunnel. All the frontier control authorities made bids to have the maximum facilities and maximum number of people there—of course, it was all very necessary in their books—and Eurotunnel had to provide a police station at Folkestone for 80 officers. It was complete with everything that they could possibly want, including darkened windows so that nobody could look in. It was for everything apart from law and order, which was still going to be done by Kent Police. The cost to the company was enormous. One day, I asked the head of the police what they would have done if they had had to fund it themselves. The answer was that they would have had two policemen visiting part-time from Ashford. I was shocked by that. They were being greedy. I know that they needed money and wanted to have all the lovely equipment but, in terms of a judgment about what is required, the difference between two part-timers and 80 takes some beating.
	I fear that we have the same situation today. Of course, the police will say that everything is necessary and that they have to have the most wonderful equipment. As the noble Lord, Lord Bradshaw, said, the British Transport Police could do an extremely good job. With the Metropolitan Police's record on using firearms in the Underground, it is probably better that there are no firearms around. More seriously, as the operator has to pay, it is entirely reasonable that he should be able to get more than one quote, including one from the British Transport Police, because at somewhere like Birmingham International Airport the BTP will be on the railway but will not be allowed to take one step into the airport. That is crazy; it will come up in a later amendment. I hope that my noble friend will have something positive to say about this and, most important, will explain how the airport operator can be protected from the monopolistic and sometimes grabbing attitudes of the police, who know that they have the operator over a barrel.

Lord Faulkner of Worcester: The 10 amendments in this group deal with a variety of issues. I sense that the issues that the noble Baroness, Lady Neville-Jones, is dealing with are slightly different from those to which the noble Lord, Lord Bradshaw, and my noble friend Lord Berkeley have just referred. I shall attempt to answer all the points in my response.
	The first set of amendments proposes various changes to the membership of risk advisory and security executive groups. I shall deal first with the make-up of risk advisory groups. Amendment 152AL, moved by the noble Baroness, proposes that the Serious Organised Crime Agency, officials dealing with immigration and the security services should all be granted an automatic right to representation on the risk advisory group.
	Let me explain how membership arrangements for this group will work. Those persons who must, as a minimum, attend the group are those who represent the airport operator and the police. This is because, at the very smallest of the qualifying airports, this would represent the minimum level of membership at which basic risk assessment could be conducted. In practice, however, we expect that, in the very large majority of cases, additional security partners from a range of entities will need to attend in order for a full assessment of risk to be undertaken. However, different airports will need different risk advisory group members, which is why the airport operator has been provided with a wide-ranging power of nomination. This is there to ensure that those persons who need to attend the group in order for it to function effectively can do so.
	National guidance will provide further information about risk advisory group membership. This will include, for example, reference to the appointment of airline and UKBA representatives. At some airports, it will be appropriate for the Serious Organised Crime Agency to attend risk advisory group meetings. Where this is the case, we expect the aerodrome manager to use his power of nomination to appoint them.
	We do not believe that the police authority should attend meetings of the risk advisory group, as the function of this group is to allow for the expert consideration of threat and risk. The police authority will, however, have a role to play in the resourcing decisions taken by the security executive group; the Bill's existing powers of nomination will permit this.
	On the appointment of security services representatives to the risk advisory group and the security executive group, which Amendments 152AL and 152AS propose, we agree that there is a role for the security services to play in contributing to the information considered by the groups. This information is presently provided to existing risk advisory groups by means of a threat assessment that is issued regularly by TRANSEC. In some cases, where necessary, information is also delivered directly to risk advisory groups by a security services official. This will remain the case under these new provisions. Representatives of the security services will not normally need to attend security executive group meetings, as these discussions will relate primarily to the resourcing of measures.
	Amendments 152ANA and 152BFA, to which the noble Lord, Lord Bradshaw, spoke, seek to make it possible for a range of "alternative policing providers" to police an airport, the intention being to allow an airport operator effectively to put airport policing out to competitive tender. Other Home Office forces, the British Transport Police and private forces could all bid for the contract. It will not come as a surprise to the noble Lord when I say that I am afraid that we cannot accept these amendments. We consider it an important principle for airport security that the responsibility for policing decisions at an airport should reside with the local Home Office force, a view that is supported by the Association of Chief Police Officers.
	Whether you are dealing with terrorism, serious and organised crime or simply petty crime, local intelligence has been shown to be essential in the delivery of effective policing. Creating a situation in which one force polices the airport while another polices the community outside makes little sense. The two policing roles are interlinked and it would be complex and impractical for force activities to be split in this way. In the event of a serious incident, the local force would inevitably have to supplement the airport police, complicating investigations and causing complex command and control arrangements.

Lord Berkeley: I am grateful to my noble friend. Can he explain the boundary between the BTP's policing of Birmingham International station and the policing of Birmingham International Airport? There are just as many problems there. If the BTP, with its expertise, is capable of policing the whole railway network, why cannot it police an airport? If it did, there would be no conflict at the boundary between the two.

Lord Faulkner of Worcester: I am grateful to my noble friend for that intervention. We will discuss the jurisdiction of the BTP when we consider Amendment 159EA in the name of the noble Lord, Lord Bradshaw, a little later. My noble friend said a moment ago that the work of the BTP had to stop at the railway station and could not go on to the airport if a crime was being committed that had started at the station and went on to the airport. That situation would not apply, because the BTP has full jurisdiction to continue an investigation, and possibly a chase, if a crime started at the station and went to the airport. As I say, however, we will come back to this when we consider the amendment in the name of the noble Lord, Lord Bradshaw.
	I recognise the importance of ensuring that policing services are cost-effective—a point made by the noble Lord, Lord Bradshaw. I assure the Committee that, under the new framework, we expect discussions to explore alternatives to policing and to consider policing within the context of all security measures that are in place. Indeed, chief officers will not want to deploy more resources than are required when they could be better used elsewhere.

Lord Bradshaw: I am sorry to interrupt the noble Lord, but chief officers would have no such inhibitions if the bill were being paid by someone else.

Lord Faulkner of Worcester: If the noble Lord will contain his impatience for just a second, he will find that I answer exactly that point in a moment.
	Where specific police activity cannot be justified, parties may well agree not to include this in the plan or they may wish to gather further evidence before making a decision. Ultimately, if agreement cannot be reached, any determination provided by the Secretary of State will not impose a policing measure without regard to all relevant and reasonable evidence to demonstrate that this is necessary. I hope that the noble Lord will feel that that statement answers the point that he has just made.
	The noble Lord's amendments would, as we have heard, enable the British Transport Police to police airports. He made this point at Second Reading, as indeed I did from the Back Bench on this side of the House.

Lord Berkeley: How can my noble friend change his view?

Lord Faulkner of Worcester: I am speaking for the Government from the Dispatch Box and I have been thoroughly convinced by the case that has been put in front of me.
	My admiration for the fine job that the BTP does in policing our railways is well known in this House and, I know, is shared by both the noble Lord, Lord Bradshaw, and my noble friend Lord Berkeley. It delivers a highly effective policing service that helps to ensure that our railways are kept safe and secure and there is clearly merit in learning from the knowledge and experience that it has acquired through operating in a commercial environment. We shall, as I said, come back to the role of the BTP and its jurisdiction when we consider Amendment 159EA in the name of the noble Lord, Lord Bradshaw.
	The Government do not feel that the railway-based policing model would work at airports. There are a significant issues here, including the lack of an armed capability, the challenges of providing flexible resources across a disparate and disconnected geographical area, the need fundamentally to change the existing structures to extend competence to airports and the fact that the BTP does not have a long-established Special Branch role. We believe that there is no justification for the cost and disruption that allowing the BTP to police airports would cause when we have a perfectly good solution already in place.
	On Amendments 152AM, 152AN and 152AT, I am grateful to the noble Baroness, Lady Neville-Jones, for asking how police collaboration agreements will work in the context of these provisions. The provisions do not preclude a collaboration agreement between forces, as that would preserve the local chief constable's position as the principal decision-maker. Collaboration agreements will continue to be an option where chief constables consider them to be more effective or efficient ways of delivering policing measures. However, for the reasons that I have already mentioned, we consider it important to retain the Bill's current requirement that the local force, and not another force, should take the responsibility for policing its airports and therefore be represented on both the security executive group and the risk advisory group.
	That is not to say, however, that the chief officer of the local force could not work with colleagues from neighbouring forces in the delivery of policing services that he or she decided should be in place at the airport, either with the agreement of the airport operator under the terms of a police services agreement or in some other capacity. Where a chief officer felt that airport policing could be delivered effectively and efficiently through co-operation with another force, it would be open to that chief officer to enter into a collaboration agreement setting out the terms of this co-operation. It would also be possible for a representative of a force participating in a collaboration agreement to attend both risk advisory group and security executive group meetings in the capacity of an observer.
	Amendment 152AM would remove the Secretary of State's ability to appoint observers to the risk advisory group. One of the reasons it is important for the Secretary of State to have this power is that, in the event of any doubt about the effectiveness of a group's operation, the Secretary of State will be able to appoint officials to witness the group's proceedings. Officials will then be in a position to support the work of the group concerned and to advise the Secretary of State as may be necessary.
	Amendment 152AU proposes the removal of the provision providing specific authority for individuals to act as members of the risk advisory group and security executive group at a qualifying aerodrome. I should like to explain the rationale for the inclusion of this provision. United Kingdom airports vary considerably in size and in nature. We recognise that these provisions must work effectively at all sites. At some of the very smallest airports, the staff with responsibility for day-to-day risk assessment may also have responsibility for taking resourcing decisions and will therefore need to sit on risk advisory and security executive groups. The Bill provides for that and national guidance will contain governance advice regarding use of this provision.
	Amendments 152BGA and 152BGB, in the name of the noble Lord, Lord Bradshaw, would require the Secretary of State to consider transparency and accountability when determining a dispute. These principles run through the entirety of the new process, so it would be impossible for the Secretary of State to overlook them. Producing a risk report and an airport security plan to support decisions is a wholly transparent process and provides a clear set of accountabilities which feed into the development of the police services agreement. These will be material considerations for the Secretary of State when making a determination, so the two principles do not need to be referenced explicitly in the Bill. The amendments would also require the Secretary of State to consider whether other police providers would have made different decisions or provided policing at lower costs and how policing services are provided at airports with a similar risk profile.
	The fundamental principle underpinning the security planning framework is that decisions about security planning should be based on relevant local circumstances and intelligence. Airports are very diverse and the risk profile at each will vary in accordance with the precise nature of each operation. The mix of security measures will also vary, with policing only one possible option. That is why the new planning process does not allow this to be prejudged as mitigating measures will be based on identified threats to each individual airport. It would be inappropriate explicitly to require the Secretary of State to consider how policing might be considered at another airport when it is unlikely to be a material factor.
	The amendments also assume that costs might somehow be inflated. The national guidance will make it quite clear that police forces and authorities will be expected to set out clearly what they charge airport operators so that all parties can understand how the costs are made up. The guidance will also be clear that costs may be recovered only for those aspects of policing that should be paid for by the airport operator, as opposed to the state.
	Finally—I apologise for the length of my response, but we have had 10 amendments to consider—with regard to Amendment 152BGB, I can reassure your Lordships that the Secretary of State, acting reasonably in the execution of his duties, would certainly seek the information described in the amendment before making a determination if the nature of the dispute necessitated this, and already has the powers to do so. He can instruct parties to share that information before determination is reached.
	We have considered a series of complex but related issues in these amendments and I hope that what I have said will collectively encourage the noble Baroness and the noble Lord, Lord Bradshaw, not to press their amendments.

Lord Bradshaw: I thank the Minister for what he has had to say, but I fundamentally disagree with him. I believe that the presence of competition is almost as important as competition taking place. The fact that someone knows that the price he is paying for something might be subject to challenge by someone else often causes the price or the efficiency to improve immeasurably. I am sorry, but I do not take from him the points about local knowledge. I am sure that the BT police, or any other police force for that matter, gain such local knowledge as is important. That is part of their job. The BT police want to know who is stealing cable in an area or who is obstructing the track. That is based on local knowledge and they are as capable of getting local knowledge as the warranted force who often regard the railways as a nuisance anyway.
	I will study carefully what he has said, but I am not very sympathetic. Perhaps I might put it that he is maintaining the point of view of the people who are not in the House, but are perhaps sitting over there to my right, rather than the rational view of a rational government.

Baroness Neville-Jones: I thank the Minister for his reply and he is right to say that it was long. We seem to have two sets of discrete issues in one bunch of amendments, which I shall take in order. I listened careful to what the Minister said about the membership of these groups. I still find his reasons for discrepancy not entirely convincing, although I accept that there is diversity in the security conditions at different airports, which will require different patterns. It seems to me that, given that this new regime is coming into effect, it would be helpful if the Government would undertake to monitor carefully whether the provisions put in place by statute are working, and show willingness to amend if it turns out that there is a real problem.
	I am grateful for what the Minister said about collaborative agreements between the police, which is an important part of getting the regime to work. As things stand, it seems entirely at the discretion of the police force which is policing the airport, rather than there being any ability on the part of the police force in the area to take any initiative. I would hope that those policemen could talk to each other sufficiently frequently so that if there is a need for a collaborative agreement or active help from the police force in the area, it will be forthcoming. This is a case of ensuring that the letter of the law translates into a sensible and practical regime, which really secures the airport and is done on a basis which pays attention to local security consideration and observes certain national norms.
	I have an amendment coming up on cost. It might have been better if these amendments had been grouped, but that is as it is. There is plenty of practical evidence that the costs of policing airports have varied considerably. Not only do they vary from airport to airport, as does the rate at which certain services provided by the police are charged to the airport operator, but they change when a new police chief constable comes along and sets them again. There is not consistency in practice and there is not yet confidence in the basis on which the police charge. I do not see in the present arrangements any incentive to the police to keep their costs down. They are being paid for by someone else. I have great sympathy with the amendments put forward by the noble Lord, Lord Bradshaw. The Government should have a strong eye to the reasonableness of these charges. In the next amendment, I have a thought to put to the House, which may help.
	In relation to the amendments standing in my name, I would like to hear what the Minister has to say about my suggestion and, on that basis, I hope that I will be able to withdraw my amendment.

Lord Faulkner of Worcester: My Lords, I can respond to the two points made by the noble Baroness. Continuous monitoring is an undertaking which we are happy to give. We will see how those arrangements work out and will keep them under review. On the issue of what one could loosely call gold-plating, the Association of Chief Police Officers and the Government have made it clear to everyone concerned with these arrangements that the proposals do not provide an opportunity to gold-plate policing services. We do not expect any more police to be deployed at airports than those the airport operator and the police agree are sufficient to mitigate the identified threats, and it could well be that the number of police should fall rather than increase as a result of these arrangements. If there is a dispute, as I indicated in my earlier speech, there is a dispute mechanism to sort it out. However, it is very much the Government's intention that this will lead to more cost-effective rather than more expensive policing.

Baroness Neville-Jones: Obviously, the noble Lord, Lord Bradshaw, will speak for himself. On the basis of the assurances given by the Minister, I shall withdraw the amendment.
	Amendment 152AL withdrawn.
	Amendments 152AM to 152ANA not moved.
	Amendment 152AP
	 Moved by Lord Rosser
	152AP: Clause 77, page 97, line 28, at end insert—
	"( ) In relation to security measures to be taken by a person within subsection (4)(b)("C"), the plan may also specify—
	(a) that any other relevant person is to make payments in respect of the costs reasonably incurred by C in connection with the security measures, and
	(b) the amount of those payments or the manner in which that amount is to be assessed, and
	(c) where such payments are to be made by the manager of the aerodrome, the manner in which such payments may be reimbursed to the manager of the aerodrome by any persons within subsection (4)(c) to (e)."

Lord Rosser: My Lords, one of the objectives of the Bill is to introduce a level playing field for the payment of airport policing. Currently, nine United Kingdom airports—the larger ones—pay for airport policing twice, first through a direct contribution and then through business rates, while the smaller airports contribute through business rates and the provision of onsite facilities. The effect of the Bill is to put the smaller airports in the same position as the larger ones as regards payment for policing. At present, the smaller airports make no direct contribution to their local police force for policing at the airport in question, and the local police force bears the cost itself.
	During the passage of this Bill through the other place, assurances were given that the police would not be able to specify the levels of airport policing they considered appropriate without fully explaining and justifying to the airport authorities the costs involved. That assurance was certainly needed since the costs of airport policing are not insignificant. For example, at Manchester airport they run to some £9 million a year. Since policing costs are part and parcel of the costs of running an airport, it does not seem unreasonable that an airport authority should be able to recoup the costs of airport policing from airport users or that those other airport users should be required to make payments direct to the police. However, the wording of the Bill does not even give airports the backing to seek to pass on policing costs to airlines and others who benefit from the policing provision despite the Explanatory Notes to the Bill rather suggesting that airport security plans could provide for other stakeholders to make payments in respect of delivery by the police of a security measure. If there is no wording in the Bill to acknowledge that airports can seek to pass on such additional costs, many smaller airports will almost certainly struggle both to pay and to pass on the costs. This is the issue that my amendments seek to address.
	Figures with which I have been provided show that, based on policing costs of 80p per departing passenger, the impact on the airport's bottom line at a time when the industry is already under pressure is likely to be 15 per cent, 72 per cent and 29 per cent of existing profit for 2007-08 for East Midlands, Bournemouth and Humberside airports respectively unless the policing charges they will now have to pay directly to their local police forces are passed on to airport users. The Government's own impact assessment acknowledged that some airports could become loss-making as a result of the proposed change in arrangements for the payment for airport policing by the smaller airports. It would be helpful if my noble friend could confirm that the Government recognise the serious impact that the proposed changes to airport policing payments could have on the financial position of smaller, non-designated airports that currently do not make a direct payment to their local police force for airport policing.
	While there will be a dispute resolution mechanism that ultimately ends up with the Secretary of State, to which my noble friend has already referred, this may well not lead to satisfactory solutions since the policing of an airport will be based on decisions related to assessments of threats and the resources needed to deal with them, and be unrelated to the commercial viability of the airport, which is a key issue for the airport operator. That is why I do not share the Minister's confidence in the dispute resolution procedure, which he expressed during our debate on the previous group of amendments.
	A further concern of airport operators is that the levels of policing at the smaller, currently non-designated airports, will subtly but steadily increase following the passage of the Bill and the transfer of policing costs from the local police to the airport operator. Such concerns from the point of view of the airport operators would be diminished if they had some backing in the wording of the Bill for seeking to pass on costs to users, and there is already a precedent for giving airports such powers in the European directive on passengers with reduced mobility, as additional costs can be passed on to the airlines.
	I have already referred to the concerns of airport operators that the levels of policing at the smaller, non-designated airports will steadily increase following the passage of the Bill, an issue raised a few minutes ago by my noble friend Lord Berkeley. Indeed, there are concerns that it is already happening. Since the beginning of the year, two officers have been positioned at one of the smaller airports affected by the Bill whereas previously the only presence was the Special Branch and an armed response vehicle during increased security threat levels. There is now involvement by the police in traffic management on the terminal frontage roadway, car park patrols and increased access airside to investigate alleged thefts from airport shops.
	It is clear that local police forces regard themselves as providing services around airports that meet more than the needs of the airport operator. Last July, a circular from Leicestershire constabulary invited people to meet the East Midlands airport neighbourhood team for a consultation event comprising three one-hour meetings at different locations in the airport. The meetings were open to everyone and were billed as a chance to tell your neighbourhood team about the issues that might be of concern and to have your say about policing in the area. A further letter from that police force referred to addressing matters of concern to all sections of our "community" and said that an issue the airport police intended to address was careless and inconsiderate driving and in that regard the need to ensure the safety of all who use the airport. That may all be fine, but it is not related to airport security in the accepted sense, and there must be a suspicion that a desire to expand the service by the police to include community policing may not be unrelated to the provisions of this Bill, which will result in the costs being borne by the airport operator rather than by, in this case, the Leicestershire force.
	There is a feeling, despite what the Minister has said, that if the police can pass on the costs to airport operators, they will simply gold-plate their provision. That appears to be starting to happen already and we ought to face up to the issue. The Special Branch, the UK Border Agency and customs are funded centrally, so to that extent airport operators are already paying for airport security. Some of the smaller airport operators are querying exactly why a permanent police presence is necessary since the Special Branch and the UK Border Agency are available, and the police could be called as and when necessary, as is the norm outside the airport.
	This is an important issue for smaller airports. Times are already difficult and additional costs for smaller airports will simply make it harder for them to compete with the larger ones. In reality, they cannot pass the costs on since airport operators have existing contracts in place with airport users that do not provide for such costs to be paid, because the airport operator currently does not have to pay the costs of policing directly. If there is to be a police presence at an airport from the local force—it is a monopoly supplier and the Government have again said no to tendering—then every other company on the airport site will benefit from the police presence, but the contracts with them cannot be renegotiated unless those other companies on the airport voluntarily agree to do so. My amendment would not compel other companies to renegotiate with airport operators, of course, but they would strengthen the stance of operators in seeking to get agreement on renegotiation if they wanted to go down that road, and also in seeking to recoup such costs when it comes to the renewal of the contracts or the negotiation of new contracts.
	I hope that my noble friend will feel able to accept my amendment. The changes this Bill makes to paying for airport policing have serious implications for the viability of our smaller, non-designated airports. There needs to be a clear acknowledgement in the wording of the Bill that these additional costs can be shared by all airport users and not be left to be borne by the airport operator. More than soothing words claiming that everything will be all right on the night are needed in response. I hope that the Minister can address the concerns I have raised in a meaningful way. I beg to move.

Lord Bradshaw: I support the noble Lord, Lord Rosser, because he has approached the issue from the other end. Many airports cannot stand these charges— Ryanair has just given notice that it is leaving Manchester—and they and the people who use them operate on very narrow margins; there is not a thick crust that people can take a slice of without killing the business. I urge the Minister, in spite of his words to me, to take this matter away, give it a radical review and try to bring out something more sensible.

Baroness Neville-Jones: My Lords, we agree with the sentiments that have just been expressed. There are four amendments standing in my name in this group. Amendments 152APA and 152BEA would allow the airport operator to share the policing costs with airport users, including aircraft operators and anyone who carries out business in the aerodrome. Some airports will have very few such people and I am as concerned as other noble Lords about the ability of smaller airports, which will now be in a different regime, to bear the costs that are likely to be imposed upon them.
	My first question is: will airports be obliged to bear all the costs? Would it not be fair and right, where there are other users of the airport who benefit from the policing, to permit them to pass on some of those costs? Obviously that would have to be done in a regulated manner. The second question is: are the charges necessary and reasonable and how will they be controlled? We are in a situation where the regime which is about to be put in place does not provide internal control mechanisms of the kind we ought to have and in which we could have confidence. The airport operators who have made representations are concerned that, despite the existence of the risk advisory group and the security executive group, in practice the level of policing is likely to be dictated by the relevant chief officer of police. The Minister has given assurances, to which I attach great importance, that that will not in practice be the case and that this will be a truly regulated system.
	One of the important things the police should do in putting together their charges is to provide to the operators—and, indeed, publicly—a detailed breakdown of the resources and the costs to them of the agreement that is going to be put in place, which will have been drafted in response to the airport security plan. If there was such a breakdown, it would serve the purposes of transparency—people could see what the costs were—and enable a standardisation of costs to take place. Then it would be possible to compare what one police force in one airport was charging as compared with another police force in another airport. Although there would be diversity in the security conditions of those airports, it would enable some judgment to be made about the reasonableness and necessity of the costs, and help to create a climate in which policing costs were kept down and the police had an incentive so to do. It will be helpful to hear from the Minister what he thinks of that suggestion as a basis for moving forward. The mood of the Committee is that it is not an entirely satisfactory situation at the moment for providing a framework in which the costs of policing for the security of airports are transparent and reasonable.

Lord Berkeley: My Lords, the three noble Lords who have spoken on this group have made some strong points, but what is missing from the debate is an independent balance between security, the economic case and safety. Of course, safety and security are paramount but no one in the appeal mechanism—which ends up with the Secretary of State—represents the economic side; only the security side is represented. I am not expecting my noble friend to answer now—it is a wacky idea I had when I was listening to the other contributions—but I wonder whether the CAA has a role to play in this. It is independent and has an economic regulation role—it happens in other industries—and it could well, in addition to the ideas put forward by my noble friend Lord Rosser, which I fully support, give comfort to the operators if someone was looking at the independent economic regulation along with other matters. I look forward to my noble friend's response.

Lord Harris of Haringey: My Lords, I hope when my noble friend responds to this short debate that he will give a categorical assurance that he will not allow the security of airline passengers and those working at airports to be compromised because of what the airport operators say is their financial situation. I trust that we will be given an assurance that, as my noble friend Lord Berkeley said, security and safety will remain paramount.

Lord Faulkner of Worcester: My Lords, it would be a little churlish of me not to start by thanking my noble friend Lord Harris of Haringey for his extremely helpful and supportive comment at the end of the debate. I congratulate my noble friend Lord Rosser on the eloquence with which he moved Amendment 152AP, and other noble Lords who contributed to the debate.
	That amendment and the other amendments collectively seek to enable airport operators to recover the costs of agreed policing services and ensure that others contribute to them. We recognise that the exceptional economic circumstances affecting the global economy have an impact on everyone. However, we also have a system of funding airport policing that is both unfair and out of date. The designation of only nine airports so that they alone pay for their dedicated policing costs is a system that needs to change, and both the industry and the police agree with us. Frankly, it is not right that the taxpayer should fund airport policing costs when the airport operator, as the owner of the property on which a business is run for profit, benefits from the policing services provided there.
	The amendments would enable airport operators to recover policing costs from other parties—some airports consider that this would allow them to revisit their existing contracts—but it is an entirely commercial decision for the airport operator as to whether and how they wish to pass the costs of airport policing through to their users. Ministers have carefully considered whether the Government should intervene in commercial relations between airport operators and their customers and have not seen sufficient evidence that such a measure in the Bill is necessary. Indeed, some of these amendments restrict the relevant parties who can reimburse the airport operator to those who operate commercial enterprises at the airport, and exclude other relevant persons with statutory functions at the airport. That, in itself, is recognition of the fact that this is a commercial matter.
	This is not a decision that the Government have taken lightly. We have satisfied ourselves that airport operators are able to recover their costs as they renegotiate contracts, as they would do for any other operating costs. We appreciate that this is not always straightforward. Airport operators have known that these changes have been coming for three years, though, and the requirement to pay for dedicated policing will not arise until 2011 for the non-designated airports, so there is time for them to make arrangements.
	The amendments would also result in confusion over the distinct purpose and functions of airport security plans and police services agreements. The airport security plan may include details of any payments to be made by one relevant person to another, to allow the wider range of security partners to contribute to the cost of a security measure or project from which they benefit. However, this clause deliberately exempts detail about payments to be made by the airport to the police from the plan. This is because these payments should be specified in a police services agreement, as provided for in Schedule 6. The signatories to the agreement will be only the airport operator, the police and the police authority. It would not be appropriate to have an agreement that covered payments to be made by organisations that were not party to that agreement. It would also result in duplication if details for policing services were included in both the plan and the police services agreement. Extensive details about levels of policing services and corresponding airport payments are for the police services agreement, not the airport security plan.
	The amendments would also allow payments to be made by relevant persons—including those with statutory functions, not just commercial organisations at the airport—directly to the police authority. There is a risk that the commercial organisations would be required not only to make payments to reimburse the airport operator but to make payments to the police authority. It would be ill advised to create an extraordinarily complex process that presupposed that the benefit of dedicated policing could somehow be identified and divided between the parties.
	It is a legitimate part of running an airport that there will be associated costs. It remains a commercial decision for airport operators, as it is now for the nine designated airports, how they recover those costs. In turn, it remains open to airlines and others to decide whether and how they recover costs from their users. This is a fair and well established basis for conducting such arrangements. The economic situation is clearly affecting the industry, but it is time to move away from designation towards a fairer system for all in the industry.
	Amendment 152AUA, in the name of the noble Lord, Lord Bradshaw, would allow the cost of policing to be raised as a matter of dispute before dedicated policing had even been agreed to be necessary. I can offer reassurance that there is a more appropriate provision in Schedule 6 to raise the cost of policing as a matter of dispute, once the requirement to draw up a police services agreement has been established.
	Amendments 152AR and 152BF, in the name of the noble Baroness, seek to ensure that greater transparency is introduced into relations between airport operators and police forces by requiring a breakdown of those costs that make up the elements of a police services agreement. The detail provided to airport operators in the past has not always been adequate. Like the noble Baroness, the Government want to ensure that airport operators are clear about what police services they are being charged for. That is exactly what the provisions as drafted already provide for. We have been working with national police representatives, as well as industry, to develop guidance that sets out a clear expectation that costs should be fully explained in billing information. The Bill requires that, when producing police services agreements, our security partners must pay due regard to this guidance.
	The Bill itself already ensures that a police services agreement must contain a description of the level of policing to be provided and a description of any corresponding payments. However, if an airport operator is unhappy about the level of cost breakdown detail that the police propose to provide when agreeing a police services agreement, it is open to the operator to require more information from the police, as it would with any other commercial transaction. If that detail is not forthcoming, the operator may ultimately take the issue to dispute. As part of any determination, the Secretary of State would require clarity on precisely what policing services the airport operator had a right to expect in exchange for the payments made.
	More than one noble Lord has suggested that the proposals would affect the financial viability of airports—indeed, that we run the risk of putting airlines out of business. The Government do not take that view because the costs of policing at airports generally represent a relatively small fraction of overall operating costs. The evidence provided by the industry suggests an impact of only around 8 per cent, and businesses are free to decide to pass these costs on to customers—through airport charges, for example—if they wish to do so.
	Airports operate in a competitive market. The current system of designation places some at unfair disadvantage, and that must be addressed. That is the reason behind this section of the Bill.
	My noble friend Lord Harris of Haringey sought an assurance about security remaining paramount; we are, of course, able to give that unreservedly.

Lord Rosser: My Lords, having listened to that reply, I do not think that the Government are looking at this issue at all from the point of view of the consumer of the policing services for which they are now going to have to pay, probably handsomely—that is, the smaller airports. No one would argue about the importance of safety but, frankly, it should not be used to do more than is necessary. As I said in my contribution, there is evidence that the police are already expanding their role with the number of personnel at some of the smaller airports, no doubt taking into account the change that will come with the Bill and the transfer of the costs of policing.
	The objective may be a fairer system for policing but I doubt that the Bill achieves that. The airport operator is being left to bear the brunt without even an acknowledgement in the Bill, which is what my amendment was seeking, that it could seek to pass costs on. I will reflect on what the Minister has said and read the various contributions in Hansard. In the mean time, I beg leave to withdraw Amendment 152AP.

Baroness Neville-Jones: We on these Benches support the points that the noble Lord has been making. I do not think that anyone in this House disputes that we need a new system—that we need to revise the old system of a minority of airports being designated. There is no difference between us there. Nor is there any difference on the question of the importance of security. That is not inconsistent with trying to devise a regime that ensures that the costs that come with it are necessary and reasonable.
	I am reassured by what the Minister says about the work that is being done about the police services agreements, and I hope that those agreements will lead to a situation in which serious internal work is done to ensure that, when the different agreements are forthcoming, they are looked at and compared, and apparent discrepancies are properly examined and ironed out. No one in this House will want to see the new regime coming into being characterised by a series of disputes between operators and the police about the costs that they are having to bear. It would be unfortunate if the transition from one regime to another were not smooth. The issue of the level and fairness of costs is important. On the basis of what the Minister said, I am happy not to press the amendments standing in my name.
	Amendment 152AP withdrawn.
	Amendment 152APA not moved.
	Amendment 152AQ had been withdrawn from the Marshalled List.
	Amendments 152AR to 152AUA not moved.
	Amendment 152AV
	 Moved by Lord Harris of Haringey
	152AV: Clause 77, page 102, line 25, leave out "Secretary of State" and insert "Home Secretary"

Lord Harris of Haringey: My Lords, I shall speak also to Amendments 152AW and 152AZ. I begin by repeating the declaration that I made at Second Reading, of being a vice-president of the Association of Police Authorities and a member of the Metropolitan Police Authority. In that latter capacity, I have been involved in the oversight of the discussions about policing with Heathrow Airport as well as with the non-designated London City Airport, which have been protracted and so far unsatisfactory in their outcome.
	The amendments deal essentially with two issues; first, to establish which Secretary of State will arbitrate disputes about airport security plans. I acknowledge at once that it is of course the convention that Secretaries of State are indivisible and that the Government are absolutely seamless and work wonderfully together, but the purpose of the amendment is to clarify who will have the lead on these matters. I also want to establish what time limits should apply to settling arbitration disputes.
	The first issue is who will arbitrate in practice. This section of the Bill comprises amendments to the Aviation Security Act 1982, which is obviously a Department for Transport Act, and would imply that the Secretary of State for Transport is the relevant Secretary of State. However, the Bill is also a Home Office Bill, dealing with matters of security and policing at airports, which would imply that the Home Secretary is intended. This is made worse by Schedule 6, which deals specifically with policing plans at airports. It contains similar provisions about arbitrating disputes where policing plans are not agreed. Again, the same doubts apply in relation to which Secretary of State is intended to be the arbiter.
	Aside from these technical points, there may be a difference in the way in which the two Secretaries of State might view disputes. The Home Secretary, being familiar with national security threats, might place more emphasis on that side of the equation, whereas the Department for Transport, being more familiar with the concerns of airport operators, might place more emphasis on commercial considerations, which is precisely the issue that we have been discussing in the past couple of groups of amendments.
	This has raised some concern that profitability might be put before security—I note the assurance that my noble friend has already given on that point. When it comes to arbitrating disagreements about airport security plans and airport policing plans, I trust that what we will see is the very closest working together between the two government departments. It is in no one's interest to drive airports into bankruptcy, but it is particularly important to ensure that security is not compromised or suffers in difficult financial times. That means that there should be clarity about what airport operators are paying for, and that should relate to those national security matters.
	I hope that my noble friend will offer some reassurance that the statutory guidance to be issued following Royal Assent will include clear mention of the Secretary of State for Home Affairs being involved. I would also hope for my noble friend's confirmation that such reassurance will be within the guidance issued, that, if the Secretary of State for Transport has the lead, they should be obliged to act in accordance with it in all applicable cases, and that the paramount importance of security in such cases will be uppermost in their mind.
	The second issue in this group of amendments is whether time limits should apply in relation to determining arbitration decisions. We heard much in the Committee's debates on earlier groupings about who has an incentive to put costs up and who has an incentive to reduce them. Equally, there is an incentive for some to allow these decisions to spin out for as long as possible. If you are currently not paying something, then not doing so until 2011, 2012, 2013 or 2014 seems much better than having to pay it now. So the issue of time limits is critical. The concern here is that a decision could, as the Bill's wording stands, be allowed to drift indefinitely. That would mean that police authorities and forces could effectively be out of pocket for some months or even years before being reimbursed for delivery of policing services. Although this would be alleviated by interim payments where agreements already exist, it could prove problematic where they do not. In difficult economic times, this might in extreme situations threaten the policing presence at airports, if money cannot be found elsewhere in the police budget to tide them over until agreement is reached.
	Perhaps more serious, because it is probably more likely, is a situation where the dispute is about who should contribute which services to the security plan. This could lead to prolonged uncertainty and incomplete security cover in some respects. It is clear that that a prolonged arbitration process in these circumstances would add to an already significant risk. Any absence of clarity in these matters could lead to confusion and potentially very serious consequences. It also makes forward planning and budgeting resources almost impossible if a dispute continues indefinitely.
	I appreciate the difficulty in setting a single timescale for all possible disputes and I am not sure that three months is necessarily the right length of time—I am willing to be persuaded that it might be, let us say, four months as opposed to three—but I have included it for the sake of debate. I should be interested in my noble friend's views on what would be an acceptable length of time and how decision-making within a sensible time limit can be guaranteed. I beg to move.

Baroness Neville-Jones: Amendment 152AX is probing. It seeks to clarify the meaning and practical effect of the powers of the Secretary of State in relation to disputes. If the Secretary of State decides not to exercise his power, or exercises that power but the dispute is not resolved, the amendment would allow him to determine the dispute; in other words, if the consultation mechanism does not work properly between the parties, the Secretary of State may step in and take a decision. Under what circumstances is it envisaged that the Secretary of State would not exercise his power to require relevant persons to take steps to resolve a dispute? Can the Minister assure the Committee that it does not affect the obligation of the Secretary of State—a point which arises later in the Bill—to consult those who have an interest in the dispute? In what circumstances would the Secretary of State simply decide that he was going to decide, rather than trying to resolve a dispute with the parties?

Lord Bradshaw: The noble Lord, Lord Harris of Haringey, made reference to security as if it were some curtain to be drawn so that nobody could probe the situation once security was mentioned. One has to be very careful: there are plenty of people who will raise various obstacles to the proper appraisal of things that are put forward. Security can be one; safety can be one; and we all know how many of these things can be exaggerated.

Lord Faulkner of Worcester: My Lords, Amendments 152AV, 152AW, 152AX and 152BG seek to ensure that disputes about airport security plans and police services agreements are referred specifically to the Home Secretary for resolution.
	Given the legislative convention, to which my noble friend Lord Harris in anger referred, of referring to a Secretary of State generically rather than specifically, I assume the amendments seek reassurance that disputes will be referred to the most appropriate Secretary of State, who will make a fair and proportionate determination. This indeed is how we want the dispute mechanism to work.
	The provisions amend the Aviation Security Act 1982. Disputes are likely to cover a whole range of matters, of which policing is only one element. All airports within the national aviation security programme will be subject to these provisions, but not all will have a dedicated policing presence. As the regulator for airport security, the Secretary of State for Transport has contact with the full range of security stakeholders operating at the airport, including the police. The Secretary of State for Transport's remit for aviation security extends to the United Kingdom as a whole, mirroring the application of these provisions. The Home Secretary's remit for general policing does not extend to Scotland or Northern Ireland. Given these factors, we believe the Secretary of State with responsibility for aviation security as a whole is the most appropriate person to refer disputes to, rather than a Secretary of State who has a more narrow focus in this context.
	However, it is important to clarify—I am happy to answer the noble Baroness's point—that the Home Secretary may well have significant interests in security at the airport, particularly with regards to policing or the functions, for example, of the UK Border Agency. When this is the case, we fully expect that the Home Secretary would be consulted. The dispute resolution provisions already enable this by providing broad powers for the Secretary of State to decide procedures based on the nature and complexity of the matter. Similarly, if it were ever the case that the dispute was to be determined by the Home Secretary, we would expect the Secretary of State responsible for aviation security to be consulted, when appropriate. We have considered this dispute process in consultation with others, and both the Association of Chief Police Officers and industry support the approach taken in the Bill. I hope this provides the Committee with some reassurance.
	Amendment 152AX would require disputes about the content of a police services agreement or the costs of policing to be referred to the Home Secretary before the requirement to produce a police services agreement had been established. Clause 77 prescribes the requirement for an airport security plan, containing a holistic range of security measures. If dedicated policing services are identified in an airport security plan, only then is there a requirement to draw up a police services agreement as set out in Schedule 6. The amendment pre-empts disputes over policing and police services agreements in a clause which is essentially about the preceding stages of the security planning process.
	Amendments 152AZ and 152BA raise the importance of ensuring that disputes, whether about the contents of an airport security plan or a police services agreement, do not drag on unnecessarily. We agree that there is very little to be gained from allowing such a situation to develop. Disputes need to be handled in a timely and effective manner. What we would question, however, is the inclusion of a mandatory cut-off period for the handling of disputes, which are likely to vary considerably in length, depending on the nature of the issue itself and the complexity of operations at the airport concerned. On the one hand, it may be that a determination need only resolve a dispute about a single security measure. At the other end of the scale, although it is unlikely, a determination could, require a full consideration of final policing levels at an airport, needing a complete reassessment of the airport security plan and police services agreement. This process could also involve, for example, an inspection carried out by an external party, such as Her Majesty's Inspectorate of Constabulary. At one end of the scale, three months might actually represent too long a period to determine a dispute, while, at the other, it could well be insufficient.
	It is precisely because of the fact that disputes are likely to be very different that the Bill provides the Secretary of State with broad powers to determine a dispute in a manner he considers to be most suitable. Although the Secretary of State's primary concern will be to ensure that an effective and fair determination is provided, the importance of ensuring that a determination is provided within a reasonable timeframe is also something of which he may be mindful. The Secretary of State may be able to provide an indicative timetable to parties at the start of a dispute once an assessment of the complexity of the dispute is made, to provide the parties with some level of certainty so as to assist budgetary considerations, for example. However, I caution that this will be dependent on the individual facts of each dispute.
	It is worth noting that, when parties have been unable to agree a police services agreement and may be in breach of a requirement to have one in place, the airport operator will still be required to make payments in respect of the interim policing services being provided at the airport. The Secretary of State's determination, once made, can require repayment to the airport operator by the police if that is judged to be fair in light of payments made to the police during this interim period. Thus the Bill ensures that there is no financial incentive for an operator to seek to prolong disputes indefinitely.
	In light of the assurances I have offered I hope that my noble friend will feel able to withdraw his amendment.

Lord Harris of Haringey: My Lords, I am grateful to my noble friend for those responses. I was less clear at the end of the first part of his response than I was at the beginning as to how exactly he envisaged the arrangements working between the various Secretaries of State. What I hope is that, in whatever guidance emerges, there can be clarity about the important nature of security within all this. I would not want to see a position in which commercial issues overrode the situation. However, I understand what the noble Lord, Lord Bradshaw, and others highlighted about the importance of clarity on what security means and enabling that to be assessed independently by those able to take a step back from it. That is what I envisage the Secretary of State's role will be. I am grateful that we may be able to look at these matters. Any indication that my noble friend can give before Report as to the nature of the guidance to be issued would be extremely welcome.
	As for time limits, I understand that there will be different sorts of circumstances and welcome the fact that there will be circumstances in which an airport operator may be required to pay money from the period from which arbitration takes place. However, I was slightly confused by the language that my noble friend used. He said that the Secretary of State may consider whether the time limit would be reasonable. I may have misheard what he said, but the implication was that it would be up to the Secretary of State to decide whether to operate within a reasonable timescale. I am sure that that is not what he intended, but could there be clarity in the guidance to make it explicit that the Secretary of State is required to act in a timely manner and that, potentially, if it were felt that he was operating too slowly, it would be a matter subject to judicial review. On the basis that that is what my noble friend meant, I beg leave to withdraw the amendment.
	Amendment 152AV withdrawn.
	Amendments 152AW and 152AX not moved.
	House resumed. Committee to begin again not before 8.36 pm.

Credit Unions
	 — 
	Question for Short Debate

Tabled By Lord Tomlinson
	To ask Her Majesty's Government what plans they have to encourage the further development of credit unions in the United Kingdom.

Lord Tomlinson: At the outset, I express my gratitude to all noble Lords for showing their interest by putting their names down to speak in this debate.
	The past 12 months have seen absolute chaos in some of our financial institutions, with banks being saved by part nationalisation, the Monetary Policy Committee sticking over some months with a 0.5 per cent bank rate, liquidity being propped up by quantitative easing, lending to would-be house buyers and small businesses becoming less accessible—I could go on. However, credit union membership, which has nearly trebled since 1997, grew by more than 10 per cent in the nine months to June 2009 for those belonging to the Association of British Credit Unions Limited. By June this year, ABCUL credit unions numbered 325, with 558,000 members, £450 million in savings and £370 million on loans to members. If you include all credit unions, the figures are somewhat higher.
	I have never needed access to a credit union. I have always been in employment that allowed me to save, so I have had cash resources for crises and sudden emergencies. I have always been able to have a bank account. However, many members of our society—not only the poor—have not enjoyed the access to funds or credit that most of us in this House would take for granted. The only lifeline access to credit has been through the tally man or the loan shark, whose clutches are more difficult to escape than we can possibly imagine. Credit unions are based on the co-operative ethos of people helping people. They provide savings, loans and a range of services to members who, on the democratic principle of one member, one vote, elect volunteer directors.
	Clearly, credit unions have not been immune from the global economic crisis. There is increased demand for loans, including from many middle-income and higher-income consumers. At the same time, when people are looking for security in their savings, about a quarter of all credit unions reported significant growth in deposits and a further two out of five reported smaller levels of growth. During the recession, however, credit unions have also reported a couple of important downsides, with members struggling to repay, while credit unions are unable to make the money that they have on deposit work for them and for their members.
	What, then, do credit unions need in order to thrive? A number of things can happen and, while I shall not be at all exhaustive here, public sector support for credit unions could be significant through some relatively small things—for example, by providing free payroll deduction facilities for public sector employees to pay into credit unions and by promoting the services of credit unions to employees. The Welsh Assembly Government recently announced such an action, which could be replicated widely in the public sector. Credit unions could be assisted to occupy accessible and visible high street premises. Staff volunteering could be encouraged to enhance the skills base and governance standards of credit unions, which are especially important as they go through a process of growth. Organisations that give grant funding could be encouraged to deposit some funds in a credit union to increase the lending pot available. A number of such things could be done.
	Many other things need to happen, including the continuation of appropriate funding for credit unions, particularly the growth funds. New things could happen as well; credit unions offer cash ISAs, but when legislation changes they will be able to offer interest on some of those ISAs, which will enable them to compete on a more level playing field with other providers. There are all sorts of future opportunities on which I should like to hear the Minister toward the end of the debate; no doubt, other noble Lords will have further ideas. For example, credit unions are keen to offer their members savings gateway accounts when those become available next year.
	There is also the possibility of using the Post Office network. I know that ABCUL has already been in discussion with the Post Office for some months, to explore how credit union services could be accessed through that network. At a time when the Government are clearly struggling to find positive things for the Post Office to do when some of its core services are declining, that is one possibility.
	However, the most important thing that credit unions need in order to thrive is the legislative change that they have been hoping for, expecting and anticipating. I am particularly grateful to the noble Baroness, Lady Noakes, and to the two Select Committees for their detailed work in looking at the Co-operative and Community Benefit Societies and Credit Unions Bill. From their work, it became quite clear that there was a deficiency in the wording of the Private Member's Bill that had passed through the other place and been brought here.
	I hope for an assurance from the Minister—and I look to him for this—that he will ask his Treasury officials to work with me to incorporate in a new Bill at the beginning of the new Session of Parliament, after the Queen's Speech, those amendments that are necessary to satisfy the two Select Committee reports and the noble Baroness, Lady Noakes. If I can have the Minister's assurance that Treasury assistance will be forthcoming, I hope to be able to reintroduce the Private Member's Bill shortly after the Queen's Speech. I hope that that would meet the wishes of all sides of this House, and of the other place, and get the Bill through properly without the technical problems that it produced in its present form.
	The need for credit unions is an imperative in the provision of pluralism in our financial services and I look forward to hearing from my noble friend the Minister how, both qualitatively and otherwise, he proposes not only to sustain the current credit union developments but to help to expand them.
	Billions of pounds have been spent from the public purse on preventing market forces from devastating our financial institutions. Credit unions do not need such a vast injection of cash, but they do need an atmosphere of tender, loving care from the Government—as do the hundreds of thousands of our citizens for whom they, through mutual self-help, provide a lifeline. This extremely important subject may not affect vast numbers of people; nevertheless, when it affects over half a million of our citizens, the potential for good is clearly evident in the credit union Bill. I hope that we will have a clear and encouraging response from my noble friend the Minister.

Lord Sheikh: My Lords, I am most grateful to the noble Lord, Lord Tomlinson, for the opportunity to speak on such an important and timely issue. I am the chairman of an insurance brokering and financial services organisation and in my business life I have supported mutual insurance offices and building societies for the arrangement of insurance policies and mortgages. A number of these organisations have demutualised to become limited liability companies, but I am very much in favour of mutual organisations. I support and promote the credit unions, because they incorporate the ideals of mutuality and transparency.
	The current economic situation has highlighted the number of people in this country who have been and are being failed by traditional, commercial financial institutions. Recently, we have seen the consequences of lending institutions that are too relaxed about the scale and focus of personal debt. Those suffering the most are those who were most vulnerable in the first place. That some people have felt the need to resort to unscrupulous and illegal loan sharks is highly regrettable and a sad indicator that, as a society, we have not been able to take care of our most vulnerable. There have been horrible incidents where people have been treated very badly by the loan sharks.
	The credit union network currently makes up only a very small share of the financial services market, but that can and should change. That change in culture is necessary, if we are to avoid the debt trap that so many families have fallen into. Credit unions foster a culture of thrift and responsible lending within a community. They can provide those who may not normally have access to loans from the more traditional banking sector with a responsible and ethical way of borrowing. Unlike many traditional banks, credit unions will usually offer debt management and counselling for those in financial difficulty in a non-judgmental and unintimidating way. There are well noted examples of credit unions being a positive force for change in disadvantaged communities.
	There is still a huge divide in this country between those who are able to access the types of financial services that many of us take for granted and those who have to resort to the financial black market. Government have a role to play in closing this gap and in ensuring that financial exclusion is tackled. Credit unions can and should be part of the answer.
	The benefits and rewards gained from being a part of a mutual organisation such as a credit union are far greater than just financial. Because credit unions are owned and managed by their own members, usually voluntarily, there exists a huge incentive to make the union successful. This, coupled with the obligation that members share a common bond, means that the community element is incredibly strong among these unions. We have heard much recently about communities in Britain, about their breakdown and about the need to return to the days when people felt a common bond and were willing to help their neighbours. Credit unions can help in communities where a common bond may have been lost by bringing together people who live in the same area, share an occupation, belong to the same organisation or attend a place of worship.
	Credit unions, and other good mutuals, offer good services to their customers and are able to show strong accountability to their members. They are able to combine a public service ethos with a strong customer focus, something normally better attributed to the private sector. They should be part of the overall mix of financial services available to people, increasing choice in the market and promoting more than just profit. It is also important that credit unions remain true to their savings ethos and protect themselves from becoming just another financial institution. Credit unions have the potential to reach many more communities and customers than they do at present, but this will require extra effort on the part of the Government. I look forward to seeing the growth of these community-based unions.

Lord Haskel: My Lords, I am most grateful to my noble friend for reminding us that there is an alternative to the high street banks. There are financial institutions that pay reasonable rates of interest but do not take huge risks or deal in dodgy paper; they pride themselves on their low overheads and reasonable pay and, as the noble Lord, Lord Sheikh, reminded us, they are ethically run. It is these qualities that make me think that perhaps the age of the credit union is upon us. As my noble friend explained, credit unions are owned and controlled by their members for the common good. This was the subject of Professor Sandel's Reith lectures this year. And for what was Elinor Ostrom awarded the Nobel economics prize last week? It was, in the words of the Nobel Committee:
	"For work on the right of users to self organise".
	In other words, as my noble friend put it, people helping people—a phrase straight out of credit union literature.
	This debate is about credit unions in Britain, but they operate in most countries and offer us a lot to learn. They are extremely varied in size, membership and the services that they offer. In Ireland, half the population belongs to a credit union; in other countries, hardly anyone does so.
	I think that it is in the developing countries where we see the most benefit, because credit unions are a form of low-tech banking. One of the messages consistently received from aid organisations is how valuable low-tech solutions are in third-world countries. This came across loud and clear last Wednesday in Committee Room 9. The All-Party Engineering Group met about 50 young engineering graduates from the best universities who had been working with two organisations, Engineers Without Borders and Engineers Against Poverty. They told us how they had been to third-world countries, or were going to developing countries, to do fairly simple things such as designing a sewerage system, making the electricity supply more efficient, organising public transport, designing and helping to build a road or a bridge or distributing fresh water. All this was done to help to lift people out of poverty and move them from subsistence to sustainability. Frankly, I found their idealism uplifting. A senior engineer from Arup told us how £100 invested in a family helps to raise their income by as much as 60 per cent, and how £1,500 invested in a home helps to eliminate disease, provide better living standards and enable the children to go to school. What is required, she said, is some kind of social entrepreneur to organise and manage this finance, modest as it is.
	We have heard about Engineers Without Borders and we know about the humanitarian work done by Doctors Without Borders, such as that done by Médecins Sans Frontières, so my question to the Minister is this: what about bankers without borders—that is, young bankers to provide the low-tech solution that is so effective in medicine and engineering? Cannot the Treasury and my noble friend help to find some young bankers driven by a wish to help to lift people out of poverty by means of self-help and to organise credit unions, micro-finance and local enterprise? They could introduce proper accounting principles and internal controls and procedures, plan financial operations and introduce proper governance. All these things are the bread and butter of banking. It seems to me that a corps of idealistic young bankers from Britain, working in the emerging economies through credit unions, would not only be an important part of fighting poverty but would help to raise the positive profile of credit unions here in Britain and perhaps renew our faith in bankers.

Lord Rogan: My Lords, I, too, welcome this short debate initiated by the noble Lord, Lord Tomlinson, on furthering the development of credit unions in the United Kingdom of Great Britain and Northern Ireland. There is a geographical area of that union where the development of the credit union movement is out of kilter and is indeed being impaired compared with the movement in the remainder of the kingdom.
	This evening I specifically ask the Minister what plans the Government propose to especially encourage the credit union movement in Northern Ireland, and in so doing to give the movement there parity with the credit unions which operate throughout the rest of Great Britain. There are several inconsistencies in how credit unions are regulated in Great Britain and in Northern Ireland. I shall mention four. The most critical anomaly is that we in Northern Ireland are not covered by the Financial Services Compensation Scheme. Credit union members in Northern Ireland do not enjoy the same protection as credit union members in Britain or, indeed, in the Republic of Ireland. Just look at the current plight of the Presbyterian Mutual Society savers—and they were savers.
	Secondly, credit unions in Britain can apply for funding under the Growth Fund. Substantial assistance can be obtained for credit unions to introduce new savings and loan schemes, whereas in Northern Ireland that is denied to them. Further, the Department for Work and Pensions in Britain sponsors credit unions to administer the Social Fund hardship loans. Credit unions in Northern Ireland are not permitted to do so. In Britain, the unions are being encouraged to set up a gateway savings incentive scheme. No such savings product has been implemented in Northern Ireland.
	In two areas, Northern Ireland credit unions do not have parity with other financial institutions. They are not permitted to provide a mini cash ISA service to their members. Instead of members being rewarded for saving with their credit union, they are penalised because they are taxed on any income earned. If Northern Ireland credit unions were to provide mini cash ISAs, their members would be permitted to put into savings £3,000 per annum, tax free, just as in Britain, where credit unions are allowed to offer these facilities, as are all other financial institutions. Similarly, credit union members in Northern Ireland are not permitted to avail themselves of the child trust fund service. I am aware of a credit union with in excess of 3,200 juvenile members with deposits totalling more than £1.6million, yet it cannot offer any child trust fund product.
	The main obstacle that credit unions in Northern Ireland face is that the primary legislation, the Credit Unions (Northern Ireland) Order 1985, has not kept abreast of changes in the financial services market. In fact, the Northern Ireland order expressly prohibits credit unions from performing the functions of banking. Credit unions in Britain, regulated under the Financial Services Authority, have been able to provide these services from their inception. In addition, by virtue of being regulated by the FSA, they are covered by the Financial Services Compensation Scheme.
	I am conscious that my remarks have had a negative edge. I shall finish on a positive note. I am aware that a review is currently under way in Northern Ireland and, I hope with political support in Stormont and Westminster, credit union members in Northern Ireland should start to enjoy a more level playing field.

Lord Graham of Edmonton: My Lords, I should say at once how indebted we are to my noble friend Lord Tomlinson for seizing the opportunity to allow us to become members of the credit union supporters' group. He has said everything that needs to be said about them statistically and on their aims and references. We are grateful to him. Every contribution has enhanced not just this House, but the value of credit unions in the economy of this country.
	I declare a general interest, which is not related to my interest in the Co-operative Group declared in the Register of Lords' Interests. Sixty years ago, I was an employee of the Newcastle Upon Tyne Co-operative Society. I would stand in the general office with other colleagues on what was known as a red letter day—dividend day. When I and my colleagues paid out the dividend, we knew that this was a good community activity because the way that the Co-op worked in those days, and perhaps does now, was that its share capital was accrued dividend which had been earned and not drawn. On dividend day, the money was drawn and some 50,000 of the 60,000 members of the society who withdrew a portion of their dividend spent it on shoes, boots, shirts, suits and things of that kind. The money was raised in the community, for the community and spent by the community.
	It has often been said that the Co-op movement never made a millionaire and never made a pauper. The first has been overtaken by events—some millionaires have been made—but I have yet to hear of paupers.
	One of the bugbears for credit unions in getting off the ground was, sadly, that they were not being wholly policed and serviced by competent officials. In other words, there was the question of security. In those days, there were three elements to investment for the working class: liquidity, profitability and security. All are important, but the most important element was security. People wanted to make sure that their money was safe, but because they left their money in their share passbook, there was cheap capital available for the society to use.
	This is all part and parcel of the current situation. My noble friend Lord Tomlinson has allowed us to say why we believe that the theory and practice of credit unions have a part to play today. Like him and others around the House, we have watched the situation, nationally and financially, go from bad to worse. I make no comment on that, except to say that the credit union movement stands tall and upright in its service to its members.
	In conclusion, I received a document called Credit Union News. It states:
	"Time for credit unions to reach out. Credit unions are poised to benefit from major changes in legislation and according to Mark Hoban MP, Shadow Financial Secretary to the Treasury, they now have a tremendous opportunity to seize the moment and become the real alternative to the High Street banks".
	The article also states:
	"He goes on to say that a key objective should be the provision of 'universal coverage'. 'I want to see the development of credit unions across the UK and I want to see them able to provide services and products to the whole population so that everyone has access to a credit union'".
	Those of us who know the credit union movement know of the bond which binds together communities, trade unions, the police and local government. As an aspiration, the more that people have access to an organisation such as a credit union, the more they will sleep easily in their beds.
	I look forward very much to what the Minister has to say, because the credit union movement has problems, aspirations and desires. They have served their apprenticeship in the field of financial management and responsibility. They deserve attention, which I know they are getting, from this Government—now and in the future. I congratulate my noble friend Lord Tomlinson, and everyone else who has spoken, on being very much to the point.

Lord Howarth of Newport: My Lords, I add my thanks and congratulations to my noble friend Lord Tomlinson for enabling us to debate the important subject of credit unions this evening, and for his commitment and hard work in the cause of credit unions.
	What I shall say this evening is informed by my awareness of the work, successes and problems of credit unions in Newport and Norwich. Newport is the city that I represented in the House of Commons and Norwich is the city in which I now live. Newport has needed its credit union. In my former constituency of Newport East, there were communities traumatised principally by the vicissitudes of the steel industry. There were people in those communities who were not only poor but lacking in confidence, lacking in the most basic understanding of how to manage money and certainly lacking in access to banks. We have come to understand that, while the banks were happy to engage in sub-prime mortgage lending, they were not happy to provide the generality of banking facilities to many poor communities. When people in those deprived communities had access to banking facilities, too often the charges on overdrafts that they suffered compounded rather than eased their problems. People in my former constituency were prey to loan sharks charging APRs of several hundred per cent and enjoying the assistance of Alsatian dogs in collecting the money they claimed as owing to them. Even in very recent weeks, in the Larkman area of Norwich leaflets have been distributed offering pre-Christmas loans at an APR—if you study the small print and have the ability to comprehend it—of 128 per cent. In the recession, of course, more people have become vulnerable to such temptations and pressures. Credit unions have certainly been needed.
	In the past 10 years, Newport Credit Union has expanded from operating in four wards of the city to the whole of the city and now has 1,500 members. In Norwich there are four credit unions: three community-based and one employee-based—the employees of Norwich City Council and other local authorities in the area. Over the past 20 years, the credit unions in Norwich have achieved a membership of about 1,500. At the moment, Ketts Credit Union is developing collection points in schools, helping young people to learn to save.
	What are the lessons that should be learnt from the experience of credit unions over the past decade? One obvious lesson is that establishing and building a credit union is a difficult and slow process. It is difficult, in part, because it takes time to find local people with the confidence and skills to take on these responsibilities.
	How, then, should credit unions be helped? I warmly endorse the agenda for assistance to credit unions set out by my noble friend Lord Tomlinson and would add only a very few reflections. One is that we should respect localism and local variety in credit unions. I do not think that we want standard models, and we should be very wary of how big government, and big central government in particular, approaches and deals with credit unions. One has to respect the local ownership and local control to which my noble friend Lord Haskel particularly drew attention. The needs that credit unions meet are local, as is their contribution. Word of mouth is probably the best way to expand membership. Their volunteers are local, motivated by community loyalties. Let us take this opportunity to praise and thank those who commit so much time and energy and community and civic spirit to helping credit unions to do the invaluable work that they do.
	I think that support for credit unions should also be local. Small amounts of public funding might constitute a very good investment in helping credit unions to achieve critical mass and cross the hurdles of development that they need to cross—for example, support for part-time finance officers or, as the Welsh Assembly Government have recently provided, help in Newport for part-time officers to extend financial inclusion. It must be a good investment to help to avert personal disaster and to build community strength. If grants are available to provide some stiffening of professional help, that will of course be very welcome. I suspect that it is better that the grants come through local authorities, and if central government or the Welsh Assembly Government wish to support local authorities, so much the better.
	However, help might also be provided by way of deposits. I am advised that there are areas in the United States of America where credit unions are relatively well capitalised and this is because it is a custom for local institutions to make deposits with them—deposits that are no doubt small in the terms of those institutions but significant for the credit unions. So might it not be attractive and helpful if it became conventional practice for local authorities, local banks and other local businesses to deposit money with their local credit unions? They would be at least as safe as they were in depositing money with Icelandic banks—indeed, much safer—and it would be an aspect of corporate social responsibility.
	I shall be very interested to hear the Minister's view of the value of credit unions and of what can sensibly and sensitively be done to promote and assist them.

Lord Newby: My Lords, I too congratulate the noble Lord, Lord Tomlinson, on initiating this debate, which has been extremely well informed and interesting. I was particularly interested in the description of the noble Lord, Lord Graham, of handing out the dividend in 1949, a time when my mother was working in the divvy department of the Leeds Co-op. I grew up with stories of the divvy and I have seen its value to the person as well as in a policy sense.
	It is also a pleasure to be talking about an aspect of the financial world that is miles away from the bonuses that we tend to get bogged down with. We are talking about a significant proportion of the population. The noble Lord, Lord Tomlinson, referred to 500,000 or 600,000 people who are members of credit unions. Provident Financial, one of the door-to-door lenders which is not a loan shark but which certainly charges very high rates of interest compared with credit unions, has 1.8 million customers. We are talking about a big pool.
	I believe there is general agreement on the value of credit unions. When Mark Hoban says that he would like credit unions to become the real alternative to high-street banks, I hope that he will continue to promote that as part of the financial services agenda if he is ever in a position to influence it. Over recent months, we have seen a number of ways in which credit unions have taken on new responsibilities, which most people would be pleased to see. A number of noble Lords may have seen that the Audit Commission in a report in August looked at the way in which local authorities are increasingly working with credit unions, not least dealing with redundancies in parts of the country and using resources under local authority control in innovative ways to help credit unions to grow. In some parts of the country, libraries are now being used as collection points for credit unions, which seems a sensible use of a community resource. If, once it has sorted itself out, the Post Office were to play a role in developing credit unions that would be extremely good.
	Although we all agree on the value of credit unions, if one looks at how one establishes and sustains a credit union, one sees that it is extremely difficult. My wife was involved in establishing a credit union in Lambeth and for months on end she returned home late at night, weary from a meeting where she, together with a group of enthusiastic volunteers, grappled to put together the Lambeth credit union. I was very relieved to see from the web that that institution still exists but it has only 500 members. The effort that went into creating it was disproportionate to the number of people who use it, particularly as within Lambeth many thousands of people could more sensibly be in a credit union rather than dealing with their finances through their current method.
	I would like to pursue three very different ideas to help make the life of credit unions easier. The first relates to staff volunteering, as a number of noble Lords have mentioned. I do not know about bankers without borders but getting bankers to be attached to nascent credit unions, as solicitors carry out pro bono work with law centres or other bodies, is an extremely good idea. I suspect that many middle-ranking bankers would quite like it. I hope that can be pursued.
	Secondly, I hope that we get the Co-operative and Community Benefit Societies and Credit Unions Bill through quickly in the new Session. It would help if the Government were to adopt it and put it in the Queen's Speech. I believe that it would go through like a dose of salts. I hope that goes through because it is another building block.
	The third thing which has been drawn to my attention by my colleague Peter Black, a Member of the Welsh Assembly, is that currently credit unions are paying £8,500,000 to the Financial Services Compensation Scheme, which seems disproportionate given the risk attached to credit unions. That is a cost that they could well manage without. I hope that the Government will look at that.
	To sum up, I think we are agreed that credit unions deserve our support and acts of encouragement.

Baroness Noakes: My Lords, I congratulate the noble Lord, Lord Tomlinson, on securing this short debate this evening, and I thank him for the work that he did on the Private Member's Bill. I look forward to his bringing that back in the new Session.
	The noble Lord, Lord Tomlinson, and other noble Lords have given a good overview of the strengths and opportunities for credit unions. It is the policy of my party to support consumer choice in financial services, and that requires diversity. Credit unions are clearly an important part of that diversity, as my noble friend Lord Sheikh so clearly explained. I am grateful to the noble Lord, Lord Graham, for reading out my honourable friend Mark Hoban's positive views on credit unions. I will be happy to tell him that he is endorsed by the noble Lord, Lord Graham.
	It is tempting to just agree that credit unions are a good thing, in particular because they provide lower cost credit for those who might otherwise fall into the hands of loan sharks, as the noble Lord, Lord Howarth, explained. I would like to spend my few minutes this evening concentrating on the other side of the equation, which is saving. Credit unions obviously do have savers, but their reach is not particularly great within society. I argue that we need a much broader focus on the desirability of saving in our society rather than on access to finance.
	We have seen an explosion in personal debt in the past decade or so, with personal debt now standing at £1.5 trillion. In the past two years that has been stabilising, and we have even seen one or two falls in the monthly statistics. The fact remains that the average household debt is nearly £60,000 and unsecured debt is around £9,000. An astonishingly high proportion of the adult population, at over one-third overall—double that rate for groups such as single parents—have no savings whatever. That is why at the smallest financial crisis those people are driven to borrowing, often at very high rates with undesirable terms.
	In addition, we have seen growth in a culture of borrowing for consumption. While that might be okay for those with secure incomes and good prospects, it is not necessarily sensible for those living on limited incomes. Many have borrowed not just in an emergency but to finance a lifestyle that they cannot really afford. The time has now come to reverse the trend and start to promote saving as a beneficial way of life. The savings ratio went below its long-term average shortly after 1997 and even went negative last year. It has ticked up this year, but it is still below the level of the 1980s and 1990s and below the long-term trend.
	I acknowledge that the Government are experimenting with the saving gateway scheme to try to kick-start the saving habit of those who live on benefits, and credit unions want to be a part of that. I do not think that is enough. I would like to read just one bit of a study carried out by the Personal Finance Research Centre at the University of Bristol. It says that rainy day savers—that is, long-term savers,
	"are 'born' at a very early age and retain that aspiration for life. This argues for encouraging saving at a very young age".
	Do the Government have any policies likely to create rainy day savers among the young? We do not regard child trust funds as being in that category. I have never heard it claimed that they are there to create a saving habit among children. They may do something for parents.
	A significant number of adults do not have access to a transactional bank account. That is an important part of access to wider financial services, including savings. It can also reduce the cost of living, for example by accessing cheaper energy charges. The latest report from the Financial Inclusion Taskforce shows that while there have been significant improvements in the number of unbanked adults, there remain up to 2.7 million unbanked adults, depending on the definitions that you use. Credit unions have only about 24,000 accounts at the moment, so they are clearly not the answer to that problem.
	In the Prime Minster's speech to the Labour Party, he referred to the Post Office playing a much bigger role. I hope that the Minister will elaborate on this. In particular, will this role foster financial inclusion and savings, or is it just going to be yet another route for more borrowing in society? The focus of policy going forward should be angled much more towards encouraging saving than borrowing. Then we might have a chance of rebuilding a responsible approach to finance in our country.

Lord Myners: My Lords, first, I thank my noble friend Lord Tomlinson for bringing about such a timely and important debate. Thanks, too, to all noble Lords who have spoken in this debate and for the important insights that they offered.
	The Government support credit unions and the benefits that they bring to consumers and to local communities. Credit unions help to instil and encourage a savings culture among their members. In some communities, and for many who are excluded from mainstream financial services, credit unions continue to offer the only credible alternative to loan sharks and unscrupulous doorstep moneylenders. Credit unions in Great Britain also play a significant role in supporting financial initiatives such as the child trust fund, the growth fund and ISAs, and many will also offer saving gateway accounts from next year—an important initiative to support the financially excluded.
	There are around 700 credit unions across the United Kingdom with a combined membership of 1 million adult members. As my noble friend Lord Tomlinson indicated, this is a growing sector, appealing to many throughout the UK. It has yet to reach its potential. We recognise that we need to modernise and update the legislative and regulatory framework if the sector is to continue to grow.
	Next month, we will be laying in Parliament our legislative reform order for the sector, which is eagerly awaited by the sector. It addresses many concerns that have been brought to the attention of the Treasury through consultation and a working group made up of representatives from the sector. The order will update the legislative framework for credit unions and industrial and provident societies in Great Britain. It will enable those societies to serve their members better, and to assist in the delivery of the Government's financial inclusion programme.
	The order forms part of a review of legislation that commenced in 2007 with the aim of providing the mutual sector with a cost-effective legislative framework to facilitate effective competition in the modern economy and to continue to fulfil its valuable social role. It will amend the Credit Unions Act 1979 to amend the requirements for membership of a credit union, reform restrictions on non-qualifying members of credit unions, allow credit unions to admit bodies corporate to membership, allow credit unions to offer interest on deposits, abolish the limit on annual dividends, amend the attachment of shares provisions and allow credit unions to charge the market rate for providing ancillary services to their members.
	I am sorry that the Co-Operative and Community Benefit Societies and Credit Unions Bill now faces an uncertain future, but there are grounds for hope that it can be resuscitated. That Bill, which complements the order, focuses on the linked objectives of modernising legislation and increasing member confidence in co-operative and community benefit societies by improving their corporate governance standards—laudable objectives that have received strong support from the community of stakeholders. The Bill seeks to give the Treasury a power to make further changes to credit union law by importing building society law where appropriate. The sector wants this change to help it to move on to the next phase of its development.
	The Bill also contains measures designed to protect the key aspects of credit unions to ensure that their fundamental nature—their defining philosophy and structure—is not undermined, while permitting credit unions and their governance to develop and improve. The Bill will be of direct benefit to some of the poorest and most vulnerable in society—people who should be able to count on their Government for support. As my noble friend Lord Tomlinson so eloquently said, it is people helping people and Parliament helping people to help people.
	The Government intend to make an order under the Electronic Communications Act 2000 to facilitate the use of electronic communications between credit unions and their members and the Financial Services Authority. A similar order was made in 2003 to facilitate the use of such communications by building societies.
	The current lack of legislation enabling the use of electronic communications for other mutuals means that communication between credit unions, industrial and provident societies and friendly societies, their members and other stakeholders is usually paper-based. That is both inefficient and costly. The ability to use electronic communications to discharge some of their statutory obligations would enable credit unions and other mutuals to reduce their costs, increase their competitiveness and better serve their members.
	The Government fully support the Bill proposed by Mr Malcolm Wicks and so ably supported by my noble friend Lord Tomlinson. I am sorry that its further passage is now uncertain, but I am grateful to the Delegated Powers Committee and the Constitution Committee for their careful consideration of the draft Bill. My officials and I will work closely with my noble friend Lord Tomlinson and others to decide how best to take forward legislation in this area, as is sought by the industry and supported by government.
	The Government, in their support for this sector, have set up a growth fund, with a total worth now of almost £100 million for credit unions and community development finance institutions to lend to their members—the sort of initiative that I am sure that my noble friend Lord Howarth of Newport had in mind. More than 170,000 credit union members have so far benefited from loans since the start of the growth fund in July 2006.
	In the Pre-Budget Report, we announced a review into Northern Ireland legislation for credit unions and industrial and provident societies. The Treasury published the review in the summer. The Treasury and the Department of Enterprise, Trade and Investment in Northern Ireland are now preparing a joint consultation. That will give stakeholders an opportunity to comment on the proposals for reform. The consultation is expected to be published before the end of the year.
	There were many important contributions to the debate. The noble Lord, Lord Sheikh of Cornhill, spoke with great sensitivity and persuasiveness about the role that credit unions can play in meeting the needs of the most vulnerable in society and those who are unbanked. I share with the noble Lord a great respect for the concept of mutuality, and have previously spoken about my regret that mutuals are no longer as prominent in the financial sector landscape as they were. I concur with the noble Lord that credit unions are playing and can continue to play an important role in fostering the spirit of thrift and supportive communities.
	My noble friend Lord Haskel spoke of social entrepreneurship as lying at the heart of working for the common good. I will be talking more about the issues of banks and their responsibilities to society in a speech that I shall be making tomorrow evening to the Worshipful Company of Bankers. On the specifics of the issue raised by my noble friend, in a speech that I gave last week to the British Venture Capital Association, I spoke about the need for the financial services industry to show some contrition for the damage that it has brought on the economy, by supporting community programmes. It would be abhorrent—I said this previously in response to a question asked by the noble Lord, Lord Newby—for banking institutions to cut back their community programmes at a time such as this. Much more can be done in sharing skills. I will certainly write to the British Bankers' Association conveying the sentiments expressed by my noble friend Lord Haskel. I will of course share with my noble friend and others who have spoken in this debate both the letter that I send and the reply that I receive.
	My noble friend Lord Graham of Edmonton spoke about the theory and practice of the sector. In a challenging environment, as he said, we can clearly see that the credit union movement stands tall and upright, proud and able to meet the challenges of continuing to grow into the future.
	My noble friend Lord Howarth of Newport spoke about his experiences in Newport and Norwich and quoted examples of growing and thriving credit unions developing product suites and cultures suited to the poorest and most disadvantaged. My noble friend spoke of the need to respect localism built around a common bond and for government to create a framework that enables, but does not enmesh, the essential local character of a successful credit union.
	My noble friend spoke about the opportunities for local financial institutions to second people to credit unions to provide some skill and professional support and for others to provide funding to support credit unions. The Bill supported by my noble friend Lord Tomlinson includes the admission of corporate bodies, unincorporated associations and partnerships, which would achieve some of the goals that my noble friend Lord Howarth of Newport had in mind.
	The noble Lord, Lord Newby, quoted Mr Mark Hoban earlier than I could, which is one of the many privileges of being in opposition. There are few of being in government, I can assure him. I fully support the sentiments expressed by Mr Hoban and supported by the noble Baroness, Lady Noakes, that we would wish to do everything to encourage credit unions to become the alternative to banks. To do that, we clearly need to ensure that credit unions have contemporary structures and the ability to offer a contemporary suite of products and services to their members.
	The noble Lord also spoke about the difficulties of setting up credit unions. The LRO to which I referred earlier is aimed at simplifying and removing burdens in connection with the establishment of credit unions. The consultation that supported it sought to identify barriers to the development of credit unions and to facilitate the elimination or, at least, diminution of those barriers.
	The noble Lord, Lord Newby, also spoke about the need for bankers to provide support, and I thought the example he gave of legal practices providing pro bono support for legal advice centres is a good parallel that the banking industry should be encouraged to follow. With the noble Lord's agreement, I will quote it in the letter that I intend to write to Miss Angela Knight at the British Bankers' Association. I am delighted to hear that he wishes to see the Bill, or a successor Bill, pass through Parliament.
	The noble Lord raised the Financial Services Compensation Scheme and its cost to the credit union movement. The cost is relatively small. It is less than £1,000 for the majority of credit unions and not much more than that for the largest. The credit union movement wanted to be conjoined with other deposit-taking institutions. It was invited to indicate a wish to be treated separately, but it concluded that it was in the interests of credit unions to be conjoined with other deposit-taking institutions. Credit unions have clearly benefited in terms of depositor confidence and assurance from the security that the compensation scheme provides.
	I welcome the opportunity to agree with the noble Baroness, Lady Noakes, and share the sentiment that she expressed that we need to move back towards a more balanced society that is less dependent on debt and places more emphasis on the virtues of thrift, saving and self-provision for the future. We have used too much debt across every possible avenue of society and economy in the developed world in recent years. This is not a phenomenon that is solely applicable to the UK.
	Finally, I congratulate my noble friend once again on securing this debate. It has spoken powerfully of the House coming together in a common bond of support for credit unions.

Policing and Crime Bill

Bill Main Page

Committee (5th Day) (Continued)

Amendment 152AY
	 Moved by Baroness Neville-Jones
	152AY: Clause 77, page 103, leave out lines 3 to 5

Baroness Neville-Jones: My Lords, this amendment probes an issue that was partly alluded to and covered in a previous discussion. Will the Minister respond to the question: in what circumstances would the Secretary of State decide that he would no longer try to get the parties to a disagreement to resolve it and instead intervene with his own powers and just take a decision, irrespective of the views of the parties? It seems that the clause would allow him to do this. I beg to move.

Lord Faulkner of Worcester: My Lords, Amendment 152AY would remove new Section 24AO(5) and have the rather curious, and I suspect unintended, effect of removing the power that ultimately enables the Secretary of State to make a final determination to resolve disputes about the contents or implementation of airport security plans. I suspect that that is not what the noble Baroness intends, but she specifically asked how the resolution process could work in practice, and I am very happy to answer that question.
	Because disputes are likely to vary significantly in nature and complexity, the Bill provides the Secretary of State with broad and flexible powers to resolve differences, whether these relate to airport security plans or police services agreements. Powers contained in new Sections 24AO and 29B allow the Secretary of State to compel parties involved in a dispute about an airport security plan or a police services agreement respectively to take steps that he considers will assist in the resolution of the dispute.
	As part of what I will call the initial stage, the Secretary of State could choose to compel the relevant parties to attend meetings with officials in order, for example, to work through the evidence base for either document. Alternatively, the power could be used to facilitate an external inspection of policing. This approach could be very effective in particular cases and give parties the opportunity to resolve the dispute in a mutually agreeable manner at less cost than formal determination might require.
	The Secretary of State may choose to determine a dispute either because steps taken during the initial stage have not satisfactorily resolved matters or because he considers it most appropriate to proceed directly to a determination. When determining a dispute, the Secretary of State will consider the information that the Bill requires to be considered, such as any representations from relevant persons, as well as any further evidence that he feels is necessary. That might include advice from independent experts.
	I emphasise that the use of the powers that provide for the initial dispute stage is not a prerequisite for the Secretary of State's formal determination of a dispute. Whether or not the initial stage is employed, in the event that a dispute is unresolved the Secretary of State can proceed to a determination.
	It is important that we have a flexible way of dealing with disputes, but also that the Secretary of State can determine them where necessary, so this new subsection is essential. I hope, in light of the clarification that I have offered the noble Baroness, that she will feel able to withdraw her amendment.

Baroness Neville-Jones: My Lords, I thank the Minister for that reply and for outlining how the powers would be exercised. I hope that the procedures that are outlined in the Bill lead to co-operation, which is very important. The Committee has expressed some anxiety about certain aspects of the working of the Bill, and it will need to be monitored closely to ensure that it functions effectively. This is a very important part of the Bill both for the economy and for security.
	I do not suppose that a Secretary of State would wish to exercise his powers arbitrarily. Equally, I hope that this is the type of situation where this sort of power would be exercised only rarely. Nearly always in disputes between parties, there are third parties with interests which will not necessarily be directly represented at the table. It is very important obviously that any decision taken does not cut directly across their interests. On the basis of the Minister's explanation, I beg leave to withdraw the amendment.
	Amendment 152AY withdrawn.
	Amendments 152AZ and 152BA not moved.
	Amendment 152BB
	 Moved by Baroness Neville-Jones
	152BB: Clause 77, page 104, line 43, at end insert—
	"24ASA Provision of assistance
	The Department of Transport and the Home Office must provide such assistance as may reasonably be required by a manager of an aerodrome, chief officer of police or other body drawing up guidance that, when issued and published with the approval of the Department of Transport and the Home Office, would be relevant guidance for the purposes of sections 29A to 29E of the Aviation Security Act 1982, as amended."

Baroness Neville-Jones: My Lords, this amendment rather reflects some of our earlier discussion. For all the Government's explanation of how this Bill will work, there is a certain anxiety on the part of those who are going to be called on to make it work about their understanding of what it implies. The Association of Police Authorities and the Airport Operators Association have said that the mechanisms for dispute resolution in the Bill are unclear, and we come back to the same point. I hope the Minister accepts that there is concern, even if he thinks that it is unjustified and that the provision will work out.
	In response to these concerns, the amendment would require the Department for Transport and the Home Office to assist the relevant parties in drawing up guidance. Published guidance would be extraordinarily helpful in ensuring that we can avoid the new procedures resulting in dispute rather than co-operation and efficient operation. I beg to move.

Lord Faulkner of Worcester: This amendment seeks to provide a mechanism whereby airport operators, the police and other bodies could, with the consent of the Department for Transport and the Home Office, draw up relevant guidance for the purposes of new Sections 29A to 29E of the Aviation Security Act. These sections primarily concern the circumstances in which police services agreement disputes may be referred to the Secretary of State, and the Secretary of State's powers to deal with such disputes. The amendment would also place the Department for Transport and the Home Office under an obligation to provide reasonable assistance to parties drawing up guidance for the purpose of these sections.
	The Committee may wish to be aware that the department is already producing a full guidance document that will provide advice to our security partners on these provisions. Under the terms of new Section 29C(3), the Secretary of State is already required to consider such guidance when considering any dispute either about the terms that should be included in a police services agreement, or any variation to an agreement.
	This guidance document is undergoing an extensive process of consultation and colleagues from the Association of Chief Police Officers, the Association of Police Authorities, the UK Border Agency and senior industry figures have already made an extensive contribution to this work. While we have sought input from our security partners in the drafting of national guidance, we do not believe that it would be appropriate for these partners to lead on its production. It would not make sense for these partners to set the terms of the guidance that explains how their own legal obligations should be met. This is properly the responsibility of government.
	The amendment specifically raises the question of what guidance will be issued in relation to new Sections 29A to 29E, which primarily concern powers of the Secretary of State to be exercised in seeking to resolve a dispute and when providing a determination. Because disputes are likely to vary significantly in nature and complexity, the Bill provides the Secretary of State with broad powers to resolve a dispute. This allows for each to be dealt with in the most appropriate matter. It is therefore not possible to give an undertaking as to precisely how each dispute case will be handled. But I am happy to accept the point made by the noble Baroness that there is concern about this and I hope that we are able to allay that concern. I hope that my earlier remarks regarding how the Secretary of State may choose to approach a dispute—for instance through use of an initial dispute resolution stage prior to determination—will be of help in this respect.
	In view of the reply that I have given the noble Baroness, I hope she will be able to withdraw this amendment.

Baroness Neville-Jones: As I understand what the Minister has just said, he takes the view that the department itself will draw up the guidance in consultation, not that the parties will be helped to draw up agreed guidance. I think my understanding of that is correct. It is a pity that they are not permitted, in a sense, a more active participation in drawing up this guidance, but I am glad to hear that they are to be consulted. I beg leave to withdraw the amendment.
	Amendment 152BB withdrawn.
	Amendment 152BBA not moved.
	Clause 77 agreed.
	Amendment 152BC not moved.
	Clause 78 agreed.
	Schedule 6 : Amendment of Part 3 of the Aviation Security Act 1982
	Amendments 152BE to 152BGB not moved.
	Schedule 6 agreed.
	Clauses 79 to 84 agreed.
	Clause 85 : Notification of proposal to include person in barred list
	Amendment 152BH
	 Moved by Baroness Walmsley
	152BH: Clause 85, page 111, line 27, leave out subsection (2)

Baroness Walmsley: In moving this amendment, I shall speak also to Amendments 152BJ, 152BK, 163 and 164, all of which are grouped with it. We have come to the former Independent Barring Board, which is to be renamed the Independent Safeguarding Authority. My amendments fall into two sub-groups, so I shall deal with them in that way.
	Clauses 85 and 88, the second of which relates to Northern Ireland, were introduced in the later stages of the Public Bill Committee in another place, with little explanation given for their introduction and no debate on them at all. The effect of these clauses is to require the new Independent Safeguarding Authority to notify employers and others if it is considering whether to include a person on the barred list. We believe that this is unjust and contravenes natural justice, as well as Parliament's original intention when the Safeguarding Vulnerable Groups Bill passed through Parliament. I worked on that Bill and I remember it clearly.
	From July 2010, all people who work or volunteer with children and vulnerable adults will need to be registered with the new ISA. Currently, such people need to obtain an enhanced criminal record certificate. This certificate gives the same information as standard criminal record certificates—details of spent and unspent convictions and cautions and information about whether the individual is on the sex offenders register—but it also includes any other information that, in the opinion of the chief officer of police, might be relevant and ought to be included on the certificate. The type of information that can be included is very broad and does not have to relate to a conviction or even an arrest or prosecution. Under these new clauses, allegations that are not pursued or are dismissed as spurious, and prosecutions that result in an acquittal, can be disclosed to an employer, as can information about behaviour that is not criminal at all. All this is disclosed without the job applicant ever being given an opportunity to offer any explanation. For example, an applicant might be able to demonstrate that allegations of sexual impropriety against a student had been found to be false and had been withdrawn.
	Sir Michael Bichard, in his report, was clearly concerned about this. He said that,
	"at present, Enhanced Disclosure results are normally provided at the same time to the individual applicant and to the employer or voluntary body ... Any objections by the job applicant to the provision of certain information could not, therefore, undo any damage done to his/her prospects with that particular employer ... This raises important issues about the fair treatment of individuals. There is a risk that careers may be blighted and job prospects lost".
	The Bichard report was quite clear about this.
	An effective vetting system should ensure that those not suitable to working with children or the vulnerable are barred while also ensuring that potential employers remain unaware of unfair, malicious or spurious allegations. Only when a final decision has been made by the ISA should the employer be informed of the fact. It is undeniable that details of allegations as well as convictions might be relevant in determining suitability to work with children and the vulnerable, but it is up to the expertise of the ISA to determine that.
	It is also an unfortunate truth that many careers have been blighted by unfounded accusations of impropriety. Let me give a case study that nicely illustrates the point. Susan successfully applied for a student nurse place through an NHS trust. She had started her first week at university when her enhanced criminal record certificate came back and showed that she was currently on police bail for suspected fraud. This happened after a bank account had been opened in her name through which thousands of pounds had been processed. No charges were brought against Susan and she agreed to appear as a witness for the prosecution of another suspect, who later pleaded guilty and was sentenced. This could happen to any of us whose identities are stolen. It very nearly happened to me recently.
	Susan was given no opportunity to make representations to the police or any other body regarding what information was recorded and included in the enhanced criminal record certificate. When the certificate was received by her employer, naturally she was suspended and lost her student nurse place at university. The CRB subsequently apologised. Susan's bail should not have been included on the certificate and, after a disciplinary hearing, her job was reinstated. But it was too late; by this time she had already lost her place at university and suffered the embarrassment of being suspended from work. Although the information was deleted from her enhanced criminal record certificate, the information regarding details of her disciplinary hearing remains on her personal employment file. This can be viewed by her managers at any time in the future and used when providing references. As a result of the information on this file, she feels that she has been discriminated against—and I do not blame her.
	The Safeguarding Vulnerable Groups Act set up three different situations in which a person could be included on the barred list. In the first, an applicant is automatically barred from registration in certain serious prescribed circumstances. In the second, a person is barred and may make representations to be taken off the barred list. The third situation is the one that concerns us here; it is where the ISA is considering barring a person because the person has in the past engaged in certain behaviour or if it appears to the ISA that he or she is a risk to children or vulnerable adults. In this third category, the affected person is entitled to make representations to the ISA as to why they should not be included on the barred list. This would allow those who have had allegations made against them to make those representations without an employer being made aware of them.
	We believe that the main purpose of a system such as this is to ensure that only those matters that the ISA deems to properly affect a person's suitability to work with children or vulnerable adults are disclosed to the employer. Clauses 85 and 88 are therefore disappointing to say the least. If passed unamended, they would require the ISA to notify the employer or voluntary agency that it is proposing to include a person on the barred list but has not yet taken a final decision because it is awaiting representations. This means that, although the ISA has not made any decision and although it may ultimately decide that the person should not be on the barred list, the employer will be made aware of this fact. This seems to defeat the purpose of the creation of an independent body and, indeed, the very process of allowing the person to make representations.
	When the Safeguarding Vulnerable Groups Bill was progressing through Parliament, the Government explained that it was necessary for the ISA to receive all the information and for it, not the police, to make the decision on what would be sent to the employer. Mr Parmjit Dhanda said in Standing Committee B on 11 July 2006:
	"If information referred to the IBB is obviously false, spurious or insufficient to result in inclusion on a barred list, the intention is that it should not consider the information further than is necessary to establish that fact. There will be no detrimental effects on the person who is the subject of the referral".—[Official Report, Commons, Standing Committee B, 11/7/06; col. 31.]
	I wish that were so. On the contrary, though, now the Government propose to allow the employer to have knowledge of the fact that the ISA is considering barring the person, even if the person is ultimately not barred. It is not difficult to imagine how an employer, most of whom rightly err on the side of caution, may decide not to make a job offer to someone who is not automatically cleared to work. This is bound to besmirch the reputation of the person concerned. Clauses 85 and 88 would defeat the main purpose of an independent vetting system and they should be removed from the Bill.
	Amendments 163 and 164 would repeal all provisions in the Safeguarding Vulnerable Groups Act 2006 that allow for an enhanced criminal record certificate to be issued regarding a person who is also subject to monitoring by the ISA. Amendment 152BK would introduce a new clause to amend the Police Act 1997 to ensure that an employer who is required to check whether a person is subject to monitoring under the SVG Act cannot also be issued with an enhanced criminal record certificate.
	As we have already explained, the ISA was developed to provide an effective new vetting system following the Soham murders tragedy. The Bichard inquiry report proposed vetting through the ISA model. It said:
	"The central body would take a decision on the basis of the information above and notify the applicant. At that stage, no other employer, individual or institution would be informed. Under this system, employers would still decide whether or not a job required the postholder to be registered with the central body ... Employers would also retain the ultimate decision about whether or not to employ someone, using references and interviews".
	It is understandable that an employer would still need to interview and take up references. It is a reasonable presumption, though, from what I have just read out, that Sir Michael Bichard did not envisage the need for enhanced disclosure to continue once the ISA came into operation, yet that is what is provided for in the Safeguarding Vulnerable Groups Act 2006, and it is clear that the Government intend to operate a dual vetting system through the Bill once the ISA is up and running.
	One possible justification for the presumed need to continue with enhanced disclosure is that the ISA will not provide all the relevant details. Liberty, which briefed us on this matter, asked the Home Office why it felt the need for continuing enhanced disclosure from the CRB. It gave the example of a school bus driver, saying that it would be necessary to show not only that he had ISA clearance but also that he did not have a conviction for dangerous driving. We agree that extra disclosure might be necessary to determine suitability in that type of situation. However, that information would be available through an application by the employer for standard disclosure, which shows current and spent convictions, cautions, reprimands and warnings held on the police national computer. What it will not show is any record of allegations. We cannot think of a situation where information not available through standard disclosure might be relevant to the employment of someone who has been cleared by ISA vetting.
	The Minister might suggest that the weeding of intelligence information could be done by the police to ensure that enhanced criminal record certificates do not contain inappropriate information. However, the ability of the police to operate an effective weeding policy was demolished by the case of Susan that I have just quoted and was a significant issue identified in the Bichard report, which concluded:
	"The current regime also leaves the police to make some very difficult judgements, for which they may not be best placed ... There was a clear consensus in the evidence, including that from ACPO, in favour of taking the decision about what information should, and should not, be disclosed out of police hands. That consensus is, in my view, supported by a range of compelling arguments".
	Allowing employers to continue to access enhanced criminal record certificates, in addition to checking whether a person has been ISA cleared, potentially breaches Article 8 under the Human Rights Act 1998—the right to respect for private and family life. Article 8 is not an absolute right. Article 8.2 allows for limitations if they are prescribed by law, serve a legitimate purpose and are proportionate. We would argue from these Benches that the continuation of access to enhanced criminal record certificates is not proportionate.
	We cannot see justification for the continuation of a belt-and-braces approach for professions where the ISA will now operate. We have laid this group of amendments to ensure that the enhanced disclosure scheme cannot continue side by side with ISA registration. We are merely seeking adherence to a system that is fair and deals with the problems identified by Sir Michael Bichard. The Government must justify themselves if they want to go further. I beg to move.

Lord Skelmersdale: My Lords, Part 8 of the Bill is headed "Miscellaneous" and, my goodness, isn't it just? My noble friend and I will be boxing and coxing on its various clauses and, looking at the Marshalled List, the absence thereof in one particular respect. I start with this rather curious group of amendments.
	The first of the amendments tabled by the noble Baroness, Lady Walmsley, seems to rest on what I suspect is a misunderstanding of the legislation. I understood from my reading of the Bill that the Independent Safeguarding Authority, formerly the Independent Barring Board, is only to be empowered to inform employers, not to be given a duty so to do. This, we would of course support. I hope that the Minister can confirm that our understanding of the Bill is correct.
	There are occasions where the risk is so great that action must be taken quickly to protect any potential victims. However, we surely all agree that spurious allegations must not be allowed to damage a person's reputation—for example, the student to whom the noble Baroness referred. In essence, if the ISA feels that the allegations that it is investigating are not of sufficient weight as to require immediate notification, it should have the discretion to withhold that information until the accused has had the opportunity to defend themselves and a final decision has been reached.
	I should like to hear from the Minister why the Government feel these provisions to be necessary. As a general rule, legislation should not be duplicated unnecessarily and the responsibility for making sure that those who need to know do know should be clear and consistent. I am of course referring to the original Act.

Lord Brett: I thank noble Lords for their contribution to this debate. We can all agree that, where we are seeking to protect children and the vulnerable and not to impose unnecessary and unreasonable burdens on those who seek to serve with them, we need a sense of balance. In that regard, we have to err on the side of the basic requirement of the legislation, which is protection of those who are vulnerable.
	Amendments 152BH and 152BJ would remove the provision for the ISA to notify any registered or known regulated or controlled activity providers about a person whom it proposes to bar. When the ISA reaches this stage, it will give the person eight weeks to make representations, after which it will make its final barring decision.
	The ISA will reach the stage of proposing to bar someone when it has made a finding of fact as to the person's behaviour or the risk that they pose, and a judgment as to whether it is appropriate to bar them, subject to representations that they will have the opportunity to make. In making a finding of fact, the ISA will rely on information from employers or others who refer information, and from the police. How are the duties of the employer and the ISA to be balanced in such a way as to avoid the kind of examples to which the noble Baroness referred? Employers will have a duty to refer to the ISA those allegations which the employer substantiated and which led to an employee's dismissal, and any allegations that led to the employee's resignation while under investigation. The ISA is also interested in unresolved allegations, and employers may refer those, but they are not under a duty to do so.
	The ISA is not interested in allegations that have been shown to be unfounded or malicious. That would go some way to finding reassurance in the case of Susan, who had a problem emanating from the amount of information that was collected, when her court of appeal was initially to the chief constable. The CRB does not own the records that it has; it does not compile them; it has collected that information from the police services, and it is the head of the police service in question—in the relevant county—who has the responsibility of answering the question on whether the information that has been released is reasonable.
	The ISA will not make a finding of fact lightly, and will not do so on the basis of a single unresolved allegation. It will look for harmful behaviour that may have been validated through an employer's disciplinary procedures or criminal convictions or cautions, and it will look at the pattern of different, unlinked allegations which might enable it to draw a conclusion. If the ISA reaches a finding of fact and judges that it would be appropriate to bar the individual, that person has the right of representation, but what is it to do if it knows that that person currently works with children or vulnerable adults? The employer or voluntary activity organiser might be unaware of the allegations, if the individual had moved on after the original referral to the ISA. Is it acceptable for the ISA to be aware of a risk of harm and the employer not to be aware, during the period when the individual makes representations, for some two months? Who would be to blame if the individual caused harm in the workplace? The legislation and the ISA itself would, rightly, come under the spotlight if the ISA did not notify employers of a potential risk, together with the reasons for it. Yet these amendments would remove the powers to notify employers who are responsible for those working with vulnerable groups.
	The issue of notification of the employer was included in the policy consultation of the Department for Children, Schools and Families on the vetting and barring scheme in late 2007 and early 2008. The principle of notifying employers was widely supported; what was not as widely supported but received mixed responses was when the notification should be made. The DCSF concluded, in its May 2008 report on the consultation, that employers should be notified at the point when the ISA places an individual under consideration for barring—which points to one of the concerns of the noble Baroness.
	On reflection, we revised that view, and Clauses 85 and 88 reflect the policy that the employer should be notified when the ISA proposes to bar someone rather than at the earlier stage when it places them under consideration. I can understand the objection to notification at the earlier stage, before the ISA has reached a view about the referral. The ISA might have been notifying employers prematurely, before reaching a view about the risk of harm. We have met that objection by legislating for notification at the later stage when the ISA has reached a view.
	I turn to Amendment 152BK, which we are unable to accept for a number of reasons. This amendment is aimed at preventing employers from obtaining enhanced criminal records disclosures in cases where they are also required to verify the "subject to monitoring" status under the 2006 Act. First, we believe that this is flawed as a matter of policy. While a status check will tell the employers whether the applicant is registered with the ISA under the new vetting and barring scheme, it will not tell them details of the individual's criminal record. In the case of enhanced disclosures, the details may include any information considered relevant by the police, in addition to convictions and cautions. There will be cases where that is still relevant to a prospective employer with the decision on whether to employ. For example, when an individual first applies to register with the ISA, the employer should be able to consider and act on any police information as soon as that becomes available—in parallel with the ISA considering it—and not have to wait until the ISA decides whether it is minded to bar.
	Secondly, the amendment would not, in our view, achieve its aim: an employer could apply for a disclosure through an authorised registered body—an umbrella body—or as an individual large employer, or could simply use another counter-signatory to an application. In addition, it would not be possible under the current scheme to verify whether an employer is also the registered body. On balance, therefore, the evidence is that we have got it about right. We think that the safeguards are there. If an individual is already registered and new information comes to light, that may not be enough to require a barring, but it may be enough to cause concern—and it would be right to take those concerns on board. For example, allegations of fraud—not a particular fraud, but one in several different circumstances—might set alarm bells ringing. We believe that the balance we have is about right.
	We also want to resist Amendments 163 and 164, because they would remove much more than just relevant police information from the vetting and barring scheme legislation. The amendments would entirely remove a range of powers or duties to make an enhanced disclosure—not just police information, but all the conviction and caution information as well—without proposing any other kind of disclosure as a replacement. That would remove two CRB duties that are completely unrelated to police information: a duty to inform regulatory authorities, on request, when the CRB is working on a disclosure on a person, and a duty to include on a disclosure whether a person is barred, with related information.
	Information on whether a person is barred is not just part of "relevant police information". It is the cornerstone of the new scheme to improve the safeguarding of vulnerable groups. While their proposers may wish to pursue elsewhere their general concern on police information, these amendments are specific to the vetting and barring scheme and, paradoxically, go much further than police information. For all these reasons, I believe that your Lordships should reject these amendments.

Baroness Walmsley: My Lords, I thank the Minister for his reply. I also thank the noble Lord, Lord Skelmersdale, but I would tell him that while the ISA may only be empowered to do this, and it is not a duty, given the sort of risk-averse atmosphere that we operate in it will undoubtedly do it. The noble Lord talked about the risk; if the risk was so great that the ISA would want to inform the employer straight away, the person would fall into the first or second categories that I referred to earlier—the people automatically barred, with or without the right to representation.
	The Minister talked about a person having eight weeks to respond and try to refute any allegations. Yet if they have already lost their job, that is far too late. Employers are very risk-averse these days; somebody's career will be totally destroyed if the employer is told about allegations which turn out to be quite wrong. How will the Government ensure that people know what the police are passing on? What training is being given to the police on the material that should be put in those certificates being passed on to the ISA?
	I accept that the ISA will not take notice of spurious allegations, but that misses the point. The point is that before it makes that determination, somebody's career will be damaged. We need much more work with the police to ensure that they do not pass on things that are totally irrelevant, in case that it is passed on to employers. We need to educate employers so that they understand that just because the ISA is considering allegations does not mean that the relevant person is necessarily a danger to children and should not be employed at all. However, it would make sense for them to put certain safeguards in place to ensure that the person is not left unduly in charge of children or vulnerable people.
	We on these Benches have always supported the cornerstone of this new scheme but we are very anxious that it should be fair to everybody, while, of course, properly safeguarding children and vulnerable groups. I will read very carefully what the noble Lord has said, but if he cannot answer now, will he write to me and answer some of the questions that I have asked about the police and providing information and education to employers?

Lord Brett: The question I can answer is to give an assurance that I will write. There is training and a balance here. There is, of course, a primary requirement to protect our children, but I agree that we should not unnecessarily damage people's careers. We have had a full discussion. I hope that the noble Baroness will withdraw the amendment. I will happily provide the information on training that she seeks.

Baroness Walmsley: I am grateful to the noble Lord and beg leave to withdraw the amendment.
	Amendment 152BH withdrawn.
	Clause 85 agreed.
	Clauses 86 and 87 agreed.
	Clause 88 : Notification of proposal to include person in barred list: Northern Ireland
	Amendment 152BJ not moved.
	Clause 88 agreed.
	Clauses 89 to 91 agreed.
	Amendment 152BK not moved.
	Clauses 92 to 95 agreed.
	Clause 96 : Retention and destruction of samples etc: England and Wales
	Amendment 152BL
	 Moved by Baroness Neville-Jones
	152BL: Clause 96, page 120, line 9, leave out subsections (1) and (2) and insert—
	"(1) After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert—
	"64B Retention and destruction of samples etc
	(1) Subject to subsection (2), where a sample has been taken from a person under this Part, unless such a person has given consent in accordance with section 64(3AC), all such samples and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction.
	(2) Subsection (1) above shall not apply—
	(a) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held in relation to the person; or
	(b) where the person is cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence in connection with the decision not to institute criminal proceedings or following the withdrawal or cessation of criminal proceedings; or
	(c) where sections 64C or 64D apply.
	(3) For the purposes of this section, criminal proceedings shall not be deemed to have concluded until the earlier of either (1) the lapse of any applicable appeal period or (2) a decision is made not to appeal such proceedings.
	64C Retention of samples etc (violent and sexual offences)
	(1) This section applies where any sample has been taken from a person under this Part where criminal proceedings were instituted against such person in respect of a sexual offence or violent offence and such proceedings concluded otherwise than with a conviction or with the person being cautioned for a recordable offence or given a warning or reprimand in accordance with the Crime and Disorder Act 1998 for a recordable offence.
	(2) Subject to subsections (6) and (7) below, the sample and any information derived therefrom shall be destroyed no later than—
	(a) 3 years following the conclusion of the proceedings ("the initial retention date"); or
	(b) such later date as may be ordered under subsection (3).
	(3) On application made by a chief officer of police within the period of 3 months before the initial retention date, the Crown Court, if satisfied that there are reasonable grounds for doing so, may make an order amending, or further amending, the date of destruction of the relevant sample and any information derived therefrom.
	(4) An order under subsection (3) shall not specify a date more than 2 years later than the initial retention date.
	(5) Any decisions of the Crown Court may be appealed to the Court of Appeal within 21 days of such decision.
	(6) Subsection (2) does not apply where—
	(a) an application under subsection (3) has been made but has not been determined;
	(b) the period within which an appeal may be brought under subsection (5) against a decision to refuse an application has not elapsed; or
	(c) such an appeal has been brought but has not been withdrawn or finally determined.
	(7) Where—
	(a) the period within which an appeal referred to in subsection (5) has elapsed without such an appeal being brought; or
	(b) such an appeal is brought and is withdrawn or finally determined without any extension of the time period referred to in subsection (2),
	the sample and any information derived therefrom shall be destroyed as soon as possible thereafter.
	(8) For the purposes of this Part a "sexual offence" or "violent offence" shall mean such offences of a violent or sexual nature as shall be set out in any order made by the Secretary of State with reference to this section.
	64D Retention of Samples—Residual Power
	(1) On application by a chief officer of police, the Crown Court may make an order requiring the retention of a sample taken from a person and any information derived therefrom, in circumstances where such a sample and any information derived therefrom would otherwise be required to be destroyed, if it has reasonable grounds to believe that—
	(a) there is a serious risk of harm to the public or a section of the public; or
	(b) such retention would prevent, inhibit, restrict or disrupt involvement by the person in the commission of a sexual offence or violent offence.
	(2) An order under this section is not to be in force for more than 5 years beginning with the date of the commencement of the order.
	(3) Any decision of the Crown Court may be appealed to the Court of Appeal within 21 days of such a decision.
	(4) Where an application has been made for an order under this section, the relevant sample and any information derived therefrom shall not be destroyed until such application and any appeal thereof has been determined."
	(2) At the end of section 113(1) of that Act insert—
	"provided always that the protections in Part 5 relating to the retention of samples and any information derived therefrom shall also be applicable to persons investigated or under arrest under such Acts"."

Baroness Neville-Jones: It seems that the Government have withdrawn their proposals for the retention of DNA samples. It would be nice to think that this was in response to the almost universal outcry against them. They could have replaced them with something better that would not have taken a great deal of parliamentary time.
	We on these Benches were gratified when the European Court of Human Rights' judgment obliged the Government to take note of what we had been saying for such a long time; namely, that the approach that the Government were pursuing on DNA was wrong. Therefore, we were disappointed when the Bill appeared and the inadequacy of the Government's response became clear. Rather than accepting the judgment and the force of opposition arguments, combined with the weight of expert advice from a huge variety of experts and independent bodies, the Government have sought to kick the issue into the long grass in the hope that it will disappear from the front pages, which we doubt.
	The problem was that we were presented with nothing more than a framework power, giving the Secretary of State the power to introduce whatever he wanted via secondary legislation. It is not surprising that this has come in for criticism from all sides. The Joint Committee on Human Rights and the Delegated Powers and Regulatory Reform Committee have both raised serious concerns about proceeding in this way. Not only would it have denied to both Houses of Parliament the chance to scrutinise the Government's proposals properly, it would have left the long-term development of the DNA database open to unacceptable levels of uncertainty.
	The Government seem finally to have accepted that this is not a way to proceed and have withdrawn the proposals. Our problem is that the effect of withdrawal and no replacement in legislation results in yet further delay. The relevant judgment occurred in December last year; the consultation on the Government's recommendation closed at the beginning of August—more than two months ago—and the whole matter has been debated for several years. The Government could have acted administratively to change policy without waiting to change the law, but they have chosen not to.
	We have a good template in the legislation passed in Scotland. It has an alternative system, there is available a wealth of expert advice and recommendations from a huge variety of bodies—including the Government's non-departmental public body, the National DNA Database Ethics Group—as well some extremely experienced and capable NGOs. We have a body of experience and plenty of advice. On these Benches we do not see any reason for further delay. This concerns us, because it has been going on for a long time.
	We certainly accept what the Government have chosen to do, but we intend to return at Report to seek the insertion of Conservative proposals for the future of the DNA database. Their key point is that DNA taken from innocent people will be retained only in certain cases involving sexual and violent offences—and then for only up to five years, rather than indefinitely. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, we have Amendment 152BM in this group. We are delighted with the news that the Government intend to withdraw their incredibly inadequate proposals and bring back something far more complete later. Secondary legislation was certainly no way to deal with such a critical issue, when what we are talking about—the presumption of innocence—is a cornerstone of our justice system.
	I am extremely pleased that the noble Baroness, Lady Neville-Jones, is equally taken with the Scottish system as of course we are. When we were in coalition on the Executive in Scotland, my Liberal Democrat colleagues led the charge to introduce a far more practical system, which is proving to be more effective than that in England. I should be interested to hear from the Minister on that. No doubt he is aware that despite the huge increase in the number of profiles on the database from 2.1 million in 2002 to 5.6 million last year—these are the most recent figures that I have—the number of detected crimes in which there was a DNA match has reduced from 21,000 to just 17,500. That suggests that the huge increase is producing its own problems and that the database is becoming unwieldy. That is a practical issue.
	In the interests of time, I wish to concentrate on the principle issue, which is that innocent people should not have their DNA kept on the database and that those involved in a minor crime should not expect to be on the DNA database year after year. The Government have lost the ability to see where the point of rehabilitation and dues paid to society arrives. At that point there is no presumption of innocence. I am aware that if the noble Lord, Lord Mackenzie of Framwellgate, were here he would tell us, as the Minister did at Question Time the other day, of all the crimes that have been solved as a result of DNA. There is certainly an argument to be had.
	Nevertheless, there has been no national debate on whether we should have a database. I am aware that the Government have a consultation out at the moment, and it will be very interesting to see the responses to it and to find out when the Government intend to bring back legislation to address what is now a very pressing issue. Almost a year has gone by since the European Court of Human Rights ruled on the retention of the DNA samples of S and Marper and it is very urgent that that happens. The Government have heard that both opposition Benches are very attracted to the Scottish model and, when they bring back this legislation in an acceptable form, I advise them to do so in a Bill that deals only with this issue. If they add it to a Bill containing many other issues, in a Session that will last 16 sitting weeks at most and probably less, there will be no chance of getting this legislation through and they will then be faced with deep problems so far as concerns the European court ruling. If they kept it simple and practical and along the lines of a model that already works in the United Kingdom—that in Scotland—they would have a very good chance of getting it through.

Lord Brett: My Lords, I sense that sometimes we are damned if we do and damned if we don't. Returning the DNA and fingerprints of those arrested but not convicted is an important topic that deserves the full attention of all of us involved in the legislative process. Since the European Court of Human Rights reached its decision in the case of S and Marper v the United Kingdom last December, the Home Office and its criminal justice partners have been working hard to produce a proportionate and effective framework for the retention and disposal of DNA and fingerprints. As many noble Lords will be aware, and as the noble Baroness commented, the then Home Secretary, my right honourable friend the Member for Redditch, launched a public consultation in May this year.
	The Government have always acknowledged that there is a case for saying that the detail of the retention periods should be set out in primary legislation. However, against that we have had to weigh the importance—we have just been chastised about it—of responding to the European Court of Human Rights judgment within a reasonable timeframe. We judged that the approach taken in the Bill provided a sensible opportunity for us to demonstrate our commitment to implementing the judgment, to consult swiftly but thoroughly on the detail of the policy and to give Parliament an opportunity to approve this through the affirmative resolution procedure.
	Over the summer, we have carefully considered the views expressed by the Delegated Powers and Regulatory Reform Committee, of which I am a former member and for which I have great regard, the Constitution Committee—another committee of importance—the Joint Committee on Human Rights and Members of both Houses of Parliament. Those and the responses to the Home Office consultation document have all held our attention. Although we remain committed to implementing the judgment of the European Court of Human Rights at the earliest opportunity, we accept the concerns raised by the committee and other stakeholders and we accept the strength of feeling in your Lordships' House. Given that strength of feeling, we feel that it is important to move forward with consensus, if possible. We therefore accept the view that this issue is more appropriately dealt with in primary legislation and have decided to invite Parliament to remove Clauses 96 to 98. As soon as parliamentary time allows, we will bring forward appropriate measures which will place the detail of the retention periods in primary legislation, allowing full debate and scrutiny of the issue in both Houses.
	I heard what the noble Baroness, Lady Neville-Jones, said about bringing forward proposals on Report. We took the view that if we did that, it would be seen as pre-empting the consultation—a measure that would be condemned in this House as not giving the other place the opportunity of considered discussion of a proposal that would be on the face of legislation. Therefore, we hope to allot an early parliamentary slot in which to take on board this important measure, among others. On that basis, I ask the noble Baroness to withdraw Amendment 152BL and other noble Lords not to press Amendment 152BM, and I will join the noble Lords and noble Baronesses whose names appear on the Marshalled List in opposing Clauses 96 to 98 standing part of the Bill. We could have a debate on amendments which will not survive our joint view that this clause do not stand part but I look forward to a more thorough discussion, in good time, with due consideration of proposals which can engage our attention in this House and in the other place. I believe that consultation will produce a better result than we would have had if we had gone on our original plan or tried to bring something forward on Report.

Baroness Neville-Jones: The Minister justifies the production of a framework Bill on the ground that speed is needed. It is difficult to talk about speed when the judgment was in December last year. The Government could have proceeded more speedily than they have. Given the Government's attitude to some of the legislation, they should have known that others would not be happy with them introducing a framework Bill and that there would have been a very lengthy debate and an attempt to amend. I can see why the Government have withdrawn the proposal.
	However, the UK, in the face of great criticism of the legislation in this country, is taking an excessive time to amend its legislation to conform to a judgment of the European court. The difficulty which we now face is that even if the Government produce legislation in the next Parliament, we may find that we cannot get it through so there will be further delay, which in our view is not acceptable. That is why we wish to speed up the process and try to bring forward legislation which has been well proved in another part of the United Kingdom—in Scotland—and which we believe would work well in England, Wales and Northern Ireland. Obviously, we cannot proceed this evening with the Government's legislation, so for the time being, I beg leave to withdraw the amendment.
	Amendment 152BL withdrawn.
	Amendment 152BM not moved.
	Clause 96 disagreed.
	Clauses 97 and 98 disagreed.
	Clause 99 : General information powers in relation to persons entering or leaving the UK
	Amendment 152C
	 Moved by Baroness Harris of Richmond
	152C: Clause 99, page 123, line 34, at end insert—
	"( ) The requirement to produce a passport under subsection (1)(a) does not extend to a person on a local journey as defined under section 1(3) of the Immigration Act 1971."

Baroness Harris of Richmond: In the Borders, Citizenship and Immigration Bill, which was considered earlier this year and which has now received Royal Assent, the Government introduced reforms to the common travel area which would have ended the CTA as a passport-free zone, introduced passport control on air and sea routes and raised the prospect of mobile immigration controls and actual, or de facto, document requirements on the border between Northern Ireland and the Republic of Ireland. The reforms would have had serious significant consequences for the people of Northern Ireland and the Republic of Ireland. I do not intend to repeat those concerns at this stage, except to say that one concern was the risk of racial discrimination emanating from the land border checks.
	In the Report stage of that Bill, this House voted by a majority of almost two to one to remove the common travel area reform from the Bill entirely. When the Bill returned to this House for further consideration the Government withdrew the offending clauses from the Bill, for which we are extremely grateful. However, Clause 99 of this Bill could have consequences for the CTA as well. It contains a new power for customs officers to require,
	"any person entering or leaving the United Kingdom—
	(a) to produce the person's passport or travel documents for examination".
	There is at present no reference to CTA routes being exempted.
	The CTA—common travel area—is an immigration arrangement, and customs powers are exercised between the UK and Ireland including on the land border. UKBA officials have outlined that the new power is designed to provide explicit legal cover for long-standing customs practices, carries no penalty for non-compliance and argue that it is a power to see whatever travel documents a person is carrying and will not require the carrying of a passport on routes where no passport is otherwise required.
	However, exercising a power requiring the production of a passport without any explicit safeguards could lead to an effective document requirement for targeted groups. Notably, the power is a customs power; hence it would not presently carry the same high level of risk of targeting by racial profiling that the proposed immigration practices could entail. However, customs and immigration functions are presently being merged following the Borders, Citizenship and Immigration Act 2009. Both are envisaged as being concurrently exercised by UKBA officers.
	The Lords Select Committee on the Constitution wrote to the Minister in relation to how this would impact on CTA routes. He replied:
	"By virtue of the provisions of Part 1 of the Borders, Citizenship and Immigration Bill officers of the UKBA will in future conduct both customs and immigration work at the border. UKBA officers will therefore be able to exercise the powers in clause 99 along with other customs powers. Despite the fact that UKBA officers may be exercising both customs and immigration functions, customs powers may not be used for immigration purposes or immigration powers for customs purposes. The powers available under clause 99 would not therefore be available to officers for the purpose of checking the immigration status of persons travelling within the CTA. However, having properly exercised a power for a customs purpose a UKBA officer will be able to use the information gained for immigration purposes and vice versa".
	There must a risk of abuse whereby a UKBA officer could stop and require a passport, stating the exercise of broad customs powers, when the real purpose of the stop was targeting an individual for immigration purposes. Having ostensibly exercised the customs power, the UKBA officer could then share that information with himself or herself and exercise immigration powers. You could not really make this up. Effectively this power, without CTA safeguards, could lead to a legally dubious but nevertheless effective passport requirement on the land border which in part could facilitate the ad hoc checks about which we are concerned.
	I have recently returned from the British-Irish Parliamentary Assembly, and a number of noble Lords sitting in their places tonight will concur with what that body decided unanimously yesterday. It approved a motion from Mr Stephen Rodan, the Speaker in the Tynwald, which is in the Isle of Man. The motion was:
	"That the British-Irish Parliamentary Assembly notes the UK Government's policy on e-Borders; further notes the commercial and cultural advantages of the Common Travel Area to the different jurisdictions within it; and is of the opinion that no legislative changes to the current arrangements should be made without a full consultation by the UK Government of all the jurisdictions within the Common Travel Area; and refers the matter of the e-Borders policy of the UK and its impact on the Common Travel Area to Committee A for it to inquire into this matter and to report to the Assembly".
	If we do not take note of this tonight, it will be too late and there would be very little point in the whole thing being referred to committee A, as I told the assembly yesterday.
	The parliamentarians who make up the assembly are from England, Wales, Northern Ireland, Scotland and the Republic of Ireland, as well as our Crown Dependencies of Jersey, Guernsey and the Isle of Man. It is extremely important that we listen to their concerns. We are asking the Government to do what they did last time and withdraw this particular part of the Bill until a full consultation has taken place with all the members of the constituent assembly body. I beg to move.

Lord Cope of Berkeley: My Lords, I, too, am a member of the British-Irish Parliamentary Assembly and a member of the committee to which the noble Baroness referred. It is in the middle of a study of border controls within the common travel area, with particular reference to e-border controls, which are now coming in. The assembly is keen to preserve the common travel area in the way that it has existed up to now.
	Since it was raised in the assembly yesterday, I have been in touch with the Isle of Man Government and it is clear that there has been some consultation between the UK Government and the Isle of Man Government. They have been reassured that Clause 99 does not apply to the Isle of Man. Nevertheless, I have a number of questions. The power is to require a passport or travel document from someone entering or leaving the United Kingdom, including travelling within the common travel area to the Republic, the Channel Islands or the Isle of Man. Will the Minister confirm that this power does not apply to anyone travelling to Northern Ireland from Great Britain? That, after all, is not leaving the UK—it is travel within the UK. Am I correct in saying that nobody who is concerned about the position of Northern Ireland need be concerned about this clause? That is how it appears to me.
	Secondly, what is a travel document? I thought at first that a travel document—you have to produce a passport or a travel document—might be, for instance, a document that a refugee or stateless person might have, but that is actually defined as a passport for this purpose. In subsection (2)(c) of proposed new Section 157A, "passport" means,
	"a document that can be used ... instead of a passport",
	so refugee papers and so forth would be defined as a passport, but travel documents are also included. What are travel documents if they are not such documents?
	As the noble Baroness pointed out, the clause does not specifically require anyone who is travelling anywhere to have a passport, but a customs officer can require them to produce one, which is a rather backwards way of compelling people to have a passport. That is presumably the purpose of it. What happens if someone travelling within the common travel area to Dublin or one of the Crown Dependencies does not have a passport with them when the customs officer requires them to produce it? I am not sure what the sanction is, and it would be helpful to know.
	From the answer that I had from the Isle of Man Government this afternoon, it seems that travel within a customs union, such as exists with the Isle of Man and the other Crown Dependencies, is not covered, because they are customs powers. Is that correct? If so, the Crown Dependencies, at any rate, need not bother about it, although that is of course not the case for the Republic of Ireland, which is within the CTA, but the customs arrangements are different.
	The last point that concerns me is the question of the amalgamation of customs and immigration. The noble Baroness made the point, so I shall not dwell on it, but it appears that if a border agency official who at a particular point has his customs hat on, he can require a passport, but if he takes his customs hat off to put his immigration hat on, he cannot. If he happens to see a passport when he is wearing his customs hat, he is not allowed to swap his hat over and take notice of it the other way round. That seems a very peculiar arrangement. As a former customs Minister, I have always been hesitant about the amalgamation of those two services. I am not necessarily against it—it may prove effective and it has a certain simple appeal—but I have always thought that there would be complications in it, and perhaps that is one which should be considered.
	We all want to try to preserve the common travel area. We do not want it to be nibbled away at by various side means. I seek some reassurance on my questions.

Baroness Neville-Jones: My Lords, I just add that it is evident from what has been said so far that we on these Benches support the amendment. To provide reassurance, would the Government be willing to put in place an explicit safeguard for the common travel area? That would greatly help to alleviate the evident anxieties.

Lord Brett: First, I promise that I will write to noble Lords—not, on this occasion, because I am in any doubt about the answers that I should give, but because it is a complicated issue. No one has greater regard for the British-Irish Parliamentary Association than I do and I am sure that its concerns and views will be taken on board in the appropriate quarters. I was very much with the noble Baroness in her moving of the amendment, when she rightly harped back to the provision rejected by your Lordships' House of a change to the common travel area. I was going to start by saying that I can assure her that such concerns are misplaced. I believe that they still are, but I am sure that we will benefit from correspondence setting out in some detail the answers to the points made by the noble Lord, Lord Cope.
	The first thing to say is that we are not making any changes to the common travel area. This is not about changing legislation relating to the CTA. The CTA is an immigration concept. Common checks already apply in the area known as the CTA, except for the Isle of Man. It is probably helpful if I explain, although at this late hour it will take a few minutes, how the customs controls within the CTA operate.
	As I said, the CTA is an immigration concept and deals not only with customs and revenue matters. Immigration controls are not applied within the area, with the exception of journeys to and from the Isle of Man. Customs checks already apply in the CTA, so we are not putting in place something that does not already exist.
	To turn to the question of the travel document, every airline that I have been on for several years has demanded some form of photo identity before it will let me on the plane, or at least it will want that identity to verify that I am the person named on the ticket and travelling. Therefore, it is not a question of a travel document as highfalutin as a passport or a refugee travel document; it will be the document that was required to journey by sea or air. Some sort of photo ID is required; I cannot think of any exceptions. For the purpose of anti-terrorist checks, travellers within the CTA can already be asked for a passport or another form of ID. This clause will make it clear that the officers carrying out customs checks can also seek such travel documents.
	The noble Baroness's concern is about the two-hats approach of the UKBA. Police officers have various powers under various acts of Parliament, yet we do not believe that they will easily confuse them if they are dealing with parking offences rather than social disorder on a council estate. The customs officer knows when he is operating as a customs officer. He will be instructed and given guidance that he is not allowed from that to seek access to passports or to use that information for immigration.
	Customs is now an intelligence-led operation looking at people who are bringing in drugs, contraband, weapons or whatever. If we are looking for Mr Smith, we have to identify the right Mr Smith. We do not want to round up five Mr Smiths to find that four of them are indignant because they have been stopped and questioned. We also have to find where the Mr Smiths have come from. We have intelligence and are looking at where they started and where they are when we ask the questions, "Can we see your travel document?" and "Where are you going and where have you been?".
	This is not something that we need to be fearful of. I can appreciate the concern now that the UKBA can exercise both powers, but I can give an absolute assurance that customs powers cannot be used for immigration purposes. The powers available in Clause 99 could not be deployed to check the immigration status of persons travelling in the CTA. This is not an attempt to reinstate the proposed CTA measures in the Borders, Citizenship and Immigration Bill. The BCI Bill would have introduced immigration checks on CTA movements and required a passport. This clause is not a requirement to carry any document other than that currently required for travel via air or sea.
	I hope that it may further reassure noble Lords if I point out that the Constitution Committee also raised concerns about the application of Clause 99 to the CTA but that, with the further explanation that I gave, it concluded in its report that the clause does not infringe constitutional principles. The Crown dependencies do not take issue with its application. I will provide more detailed responses to the questions not only for noble Lords participating in this debate but, by putting a copy in the Library, for those who would be unnecessarily and unreasonably alarmed by reading Hansard. This is a customs requirement; it is not an attempt to achieve something on the common travel area that your Lordships rejected some months ago.

Baroness Harris of Richmond: My Lords, I am very grateful to the Minister for responding. Some of his responses have made me even more concerned, so I look forward to hearing what he has to say. I hope that it will be a full account.
	The noble Lord, Lord Cope, talked about nibbling away at the CTA. That is exactly what we think will happen. I do not think that this is just me being paranoid. The Northern Ireland Human Rights Commission has written an extremely good briefing paper on the proposed common travel area reforms from August 2009. It is a pretty thick document. The commission has serious concerns about this clause. Saying that the Crown dependencies are not concerned about this any more is entirely wrong. Yesterday, they were very concerned and it is miraculous to me that overnight their concerns can have been calmed. They talked about the Memorandums of Understanding between the Crown dependencies that were promised. They were hardly consulted on this proposal, but that is what they want. They really ought to be given the proposals and the consultation that they ask for and which they required yesterday. I hope that the Minister will not fob them off with some of the stories that they talk about, because these roles can be interchangeable; there is no question about that. You cannot ask someone to say one thing one minute and then say, "Oh well, actually, I did not see that but now I am exercising my powers in this way". It is quite ridiculous.
	I have listened to what the Minister has said. I will withdraw the amendment at this stage, but we will definitely come back to this on Report to see what more the Government have to say. I hope that he will consult widely and thoroughly.

Lord Cope of Berkeley: May I intervene before the noble Baroness completes what she has to say, as we are in Committee? Will the Minister respond to one of the questions that I asked him? It is an easy one and we may be able to dispose of it immediately. Will he confirm that these powers do not apply to travel between Northern Ireland and Great Britain? Secondly, the Minister spoke of air and sea travel, but will he confirm that these powers apply to crossing the land border as well as to air and sea travel?

Lord Brett: It is difficult to look at the concept of travelling across a land boundary between Northern Ireland and the United Kingdom without travelling aboard a car ferry. I can give the first assurance that the noble Lord wants about Northern Ireland, but, on the questions asked by the noble Lord and the noble Baroness about consulting the dependencies, in order to reassure your Lordships I will come back to this issue on Report, when we will discuss it further and I can give the noble Baroness an update from our side.

Baroness Harris of Richmond: That is, unless the Minister decides that he will withdraw this part of the Bill altogether. I beg leave to withdraw the amendment.
	Amendment 152C withdrawn.
	Clause 99 agreed.
	Clauses 100 to 108 agreed.
	Amendment 153
	 Moved by Baroness Miller of Chilthorne Domer
	153: After Clause 108, insert the following new Clause—
	"Interpretation of disorder
	(1) The Public Order Act 1986 (c. 64) is amended as follows.
	(2) In section 2 (violent disorder), after subsection (5) insert—
	"(6) The presence of 3 or more people together as part of a peaceful demonstration will not, in itself, be taken as conduct that threatens unlawful violence.
	(7) An act of non-violent civil disobedience will not be taken as conduct that threatens or constitutes unlawful violence."
	(3) In section 12 (imposing conditions on public processions), after subsection (1) insert—
	"(1A) The presence of 3 or more people together as part of a peaceful demonstration will not, in itself, be taken as public disorder.
	(1B) An act of non-violent civil obedience will not be taken as serious public disorder.""

Baroness Miller of Chilthorne Domer: My Lords, it is unfortunate that, in a year in which we have had so many issues about the policing of protests, we have a policing Bill that makes no attempt to reform some of the worst laws on protesting.
	The first group of amendments that deal with this issue—Amendments 153 to 155 and Amendment 159A—suggests two approaches, the first of which is that we repeal legislation that has been used incorrectly to prevent protest. The second group of amendments in this grouping—Amendments 156 and 159—defines orderly protest and aims to protect the right to peaceful protest.
	The Minister may say that it is too early to discuss these amendments in the light of the G20 protests, which resulted in five independent investigations by the IPCC—it received 276 complaints about them—and, before those protests, the difficulties of the Kingsnorth protest, which resulted in an important strategic-level review by the National Policing Improvement Agency. Despite freedom of information requests and a commitment by Vernon Coaker in the other place to share the results, that review has not been disclosed. Is the Minister able to let us see it and will he place a copy in the Library? The policing of the Heathrow third runway protests also provoked issues but, at this time of night, I shall not go into the individual difficulties that arose. However, it would be reasonable to make the point that the police are there to facilitate peaceful protest.
	Since the introduction of the relevant legislation, one problem that has arisen is that the definition of "disorder" has gradually become subverted until it is taken to be referring to any form of protest. One minor triumph is that, under the Constitutional Renewal Bill, the clauses in the Serious Organised Crime and Police Act 2005—my Amendment 155 refers to these clauses—that forbid demonstrations in the vicinity of Parliament unless they have prior permission from the police are finally repealed. We have been pressing for that from these Benches for a long time. I introduced a Private Member's Bill to try to do that. I welcome that commitment in the Constitutional Renewal Bill, which I hope will finally see the light of day in this House, too.
	These amendments are extremely important. With respect to the time of night, I will ask the Minister just a few questions. Does he accept that there is a place for legislation to lay out more clearly the fundamental rights when it comes to peaceful protest? Does he accept that it is unacceptable for the police to prevent or disrupt legitimate protest through tactics such as pre-emptive arrest? Does he accept that the seizure of personal property from demonstrators is not acceptable as a matter of course? He will have seen the Kingsnorth video and will know why that, in particular, concerns me. I appreciate that a policing White Paper is coming, which will cover a lot of these issues, but in order to focus our minds on the areas that will need legislative reform it would be very useful to have this short debate. I beg to move.

Baroness Neville-Jones: My Lords, from the point of view of these Benches, the noble Baroness's amendments are something of a mixed bag. There is no question but that we support Amendment 153, which specifies that the presence of three or more people together as part of a peaceful demonstration will not, in itself, be taken as conduct that threatens unlawful violence.
	However, we are a bit concerned about other amendments, which seem less well thought through, such as those that would repeal the offence of demonstrating without authorisation in the vicinity of Parliament. That is fine in relation to a small protest, but we have to think about larger protests, which certainly do occur. Yet further amendments concern me, such as those that would repeal the offence of trespassing on designated sites, such as nuclear sites. This is a difficult issue, but I must confess that I would have more sympathy with taking the route of reviewing the list of designated sites.
	I am also concerned with those amendments that affect the PACE codes and the use of police powers for the purposes of managing protests. They come very close to dictating, if not interfering with, police tactics. That is a sensitive and difficult issue, which requires careful consideration.
	I have a great deal of sympathy with what the noble Baroness, Lady Miller, is trying to achieve in her amendments and I accept the basic principle that police doctrine must remain focused on allowing protests to happen peacefully. However, I am concerned that these amendments are not really the vehicle for getting the right balance, particularly in view of the amount of time that we have available.

Lord Brett: I start by expressing sympathy for the contributions of the noble Baronesses both in terms of the intention to try to address the concern that we should not prevent, hinder or criminalise peaceful protest, but also I recognise from the Opposition Benches the wisdom of looking carefully at the whole scene rather than just one or two aspects of it. On the question of the Kingsnorth power station incident, which to put it at its mildest none of us thinks is a good training video for how policing should take place, I understand that the report into that was put on the Kent police website a month or two ago. The more pertinent question from the noble Baroness, Lady Miller, is whether we see legislation as the route.
	It is vital that we have a common standard in the policing of protests, particularly as we are going to see a series of national events in the near future, with perhaps the Olympics as the test of our ability to handle large numbers of people in confined areas. Certainly the G20, the Kingsnorth climate camp and other recent protests have shown that not everything we want to see actually happens. As the noble Baroness pointed out in moving her amendment, these events have been the subject of numerous reviews by the Home Affairs Committee, Her Majesty's Inspectorate of Constabulary, the Joint Committee on Human Rights and the Association of Chief Police Officers, all of which we welcome. While we take the concerns raised about public order policing very seriously and are committed to working with the police and public to ensure that recommendations coming out of recent reviews are acted upon, it is important to recognise, as the noble Baroness, Lady Neville-Jones, mentioned, that the police manage thousands of peaceful demonstrations, both large and small, every year.
	The noble Baroness, Lady Miller, mentioned that we shall be setting out our proposals in the policing White Paper, which is due to be published next month. This in turn will be informed by the recommendations and lessons learnt emanating from the work of HMIC's review into policing and protest. However, the direct answer to the noble Baroness does not necessarily lie in further changes to legislation, and at this stage I have to say that I do not accept that need. It is not a question of more legislation because what is clear is that those protests were not policed in an appropriate manner, so it is a question of focusing on the key principles that need to underpin the policing of protest and ensuring that these are reflected in police guidance and training. We also need to ensure that police forces comply with revised guidance and training which will help to ensure that the concerns we all have about issues such as officer identification, use of stop and search powers and proportionate use of force are properly addressed.
	The individual amendments tabled by the noble Baroness are, in our view, unworkable and would create confusion. For instance, Amendment 153 purports to exempt three or more people who take part in a peaceful demonstration or engage in an act of non-violent civil disobedience from the offence of violent disorder set out in Section 2 of the Public Order Act. While I understand the concern that peaceful protestors should not be criminalised for taking part in demonstrations, I do not believe that such exemptions are necessary or enforceable. They would introduce confusion to the existing tests set out in the Public Order Act, risk creating confusion for the police, protestors and courts alike, and make the various provisions of the Public Order Act framework anomalous. Equally, Amendment 156, which would place provisions directly into the PACE code of practice in respect of how stop and search powers might be exercised in public order situations, risks creating uncertainty in officers' minds when policing a public order situation. Again, we feel these are issues best addressed in guidance and training rather than in a code of practice or, indeed, in legislation.
	Amendment 159 also causes confusion. It states that powers and offences set out in subsection (2)(a) to (i) must not be used for the purposes of preventing, hindering or obstructing a peaceful protest. I think that is fine, but it then makes an exception where a police officer has reasonable cause to consider that there is a "high risk of serious violence". The "high risk of serious violence" test represents a significant shift from the wording of some of the existing powers as agreed by Parliament. It would create considerable confusion to the police, courts and protestors as it would mean that existing case law, guidance and understanding could no longer be applied.
	I have a long, erudite and beautifully phrased series of arguments but I hope that in the brief argument I have made I have shown that the Government are intent on moving forward. It is not the legislation that is the problem; there are individual police officers—and maybe some groups of officers—who have not shown the required commitment. Training and guidance for those officers is probably needed more than increased legislation.

Baroness Miller of Chilthorne Domer: My Lords, I thank the noble Baroness, Lady Neville-Jones, and the Minister for their contributions to this short debate. I, too, had about 12 pages of notes on this group alone but, in the interests of time, I condensed them into about four sentences. We share in common the fact that there are issues here and, as the various reports come to be debated in your Lordships' House, they will merit serious scrutiny. We need to consider how guidance is interpreted and how we move forward into a healthier recognition that protests need to take place in a democracy. Some matters have been demonstrated by HMIC to be unhelpful—for example, a bad communications gap can cause things to go wrong between protestors and the police, as can physical issues such as the early use of shields and so on—and, as the Minister knows, the practice of kettling is being examined.
	There is a great deal to debate and I hope that we will have a further opportunity to look in greater depth at whether we need some legislative tweaks. I do not fully accept that our legislation has not played a part in leading us into a situation where some protests were policed as though they were criminal activities. I accept the Minister's comment that most of the time the police are very good at policing demonstrations well and responsibly and with great good humour, and demonstrators appreciate this. However, we need to keep our eye on the situation for the sake of the whole democratic process. In the mean time, I beg leave to withdraw the amendment.
	Amendment 153 withdrawn.
	Amendments 154 to 156 not moved.
	Amendment 157
	 Moved by Baroness Miller of Chilthorne Domer
	157: After Clause 108, insert the following new Clause—
	"Stop and search areas
	(1) Section 44 of the Terrorism Act 2000 (c. 11) is amended as follows.
	(2) After subsection (5A) insert—
	"(5B) Following the notification and confirmation of an authorisation under this section, the Secretary of State will update and publish a list of each area in which searches have been authorised and the geographical extent and the time period for which each authorisation will apply.""

Baroness Miller of Chilthorne Domer: My Lords, this group of three amendments concerns particularly the terrorism legislation that has a bearing on the various powers of the police. Amendment 157 relates to the fact that, at the moment, no one can know where stop and search powers can be exercised and so, if you are stopped and searched, you have no idea of whether or not it is reasonable. In a Written Answer, the Minister's colleague, the noble Lord, Lord West of Spithead, said:
	"The Home Office does not make the fact of the existence of an authorisation in any particular area public while it is running or for how long a particular force have an authorisation".—[Official Report, 20/5/09; col. WA 339.]
	This creates a difficulty. Of course terrorism legislation is vital, but so is the issue of where people are stopped and searched. Again, I am up against the clock in expanding the argument, but the issue merits greater debate.
	Amendment 159 highlights some of the powers that have been used disproportionately by police to curtail the activities of protesters and journalists at recent demonstrations. These were intended to be used with regard to terrorism issues, but the NUJ has written to the new Information Commissioner, Christopher Graham, to make a complaint and express serious concerns about the manner in which press card-carrying journalists are being monitored by the police, specifically by the Met's forward intelligence team. The NUJ's general secretary has written to the Home Office to say that it believes that certain journalists are the target of police surveillance because they speak to people who the police consider to be anarchists. All these sorts of situations are highly threatening in a democratic society, and we need to examine them in greater depth.
	Amendment 159E explores this matter by proposing the omission of Section 58A of the Terrorism Act, which was added by the Counter-Terrorism Act 2008 and makes it an offence to elicit, publish or communicate information about a constable. That is a pretty wide and sweeping power, and while the Minister may not be ready to repeal it this evening, he might at least undertake to monitor how it is working.
	There are a large number of issues here, and it is important that we keep our eye on them. We must ensure that our terrorism legislation is not inhibiting the operation of a proper democracy. I beg to move.

Baroness Neville-Jones: My Lords, despite the lateness of the hour, I rise to support the amendments. Under this Government, powers available under terrorism legislation have been used for reasons entirely unrelated to those for which they were put on the statute book; an inappropriate use of stop and search is one of the most obvious examples. This is the surest way to lose public support and damage community relations.
	Earlier this year the statutory reviewer of terrorism legislation, the noble Lord, Lord Carlile, rightly condemned this. He said that the use of Section 44 powers was the single issue giving rise to,
	"most assertions of excessive and disproportionate police action",
	that it was,
	"still far too much deployed in England and Wales",
	and that many,
	"examples of poor and unnecessary use of Section 44 abound".
	These comments need to be taken seriously.
	The Government need to make sure that antiterrorism powers are used proportionately and only for terrorism-related purposes. That, in our view, is what the noble Baroness's Amendments 157 and 158 seek to achieve, and we support them. Not least, with the amount of terrorism legislation the Government have added to the statute book, the amendments would provide greater clarity not only to the public but to the police and other practitioners who are tasked with tackling the terrorist threat.
	The noble Baroness also mentioned the question of eliciting information in relation to constables, with regard to Amendment 159E. Presumably, that is to stop this legislation being used as a defence for a police officer not identifying himself or herself when undertaking order or policing duties. When the offence of eliciting information was debated during the passage of the Counter-Terrorism Bill, an offence that also includes members of the Armed Forces, we on these Benches voiced cautious support for the powers lest they be used disproportionately. That is our concern. It would be helpful if the Minister would update your Lordships' House on how the powers have been used to date.

Lord Brett: My Lords, I share noble Lords' view that these are important issues. The point of agreement between the opposition Front Bench and ourselves is that these powers should be both appropriate and proportionately used, and must be used only for anti-terrorism purposes. The National Policing Improvement Agency published revised guidelines in November 2008.
	I am clear that I cannot do justice to the debate, because the noble Baroness has not been able to enunciate many of the arguments that she would have put and I have a considerable brief. That brief confirms what the noble Baroness said—that the Home Office does not make the existence of an authorisation in a particular area a matter of public knowledge while it is running. As with all these things, it is a matter of balance. The need for greater public transparency would have to be balanced against how great the continued threat was perceived to be. Jonathan Evans, the director-general of the Security Service, said recently that:
	"Al-Qaeda and other international terrorist networks remain a very serious threat",
	and that there is enough intelligence to show,
	"an intent to mount an attack",
	which could "happen at any stage". The noble and learned Lord, Lord Bingham, in the House of Lords judgment in R (Gillan) in March 2006 stated:
	"The Act and the Code do not require the fact or the details of any authorisation to be publicised".
	It is that question of balance. The best that I can do in relation to the detailed argument is to write to the noble Baroness, not because I have doubts about the arguments to be put but because I would not be able to do justice to them this evening.
	Amendment 159E raised the question of journalists. It is not the Government's intention that counterterrorism powers be used to stop people taking photographs or to impair journalists in their going about their normal business. I can amplify that too in writing, and I have no doubt that it will be debated at another stage.

Baroness Miller of Chilthorne Domer: My Lords, I am most grateful to the noble Baroness, Lady Neville-Jones, for her support for the amendments. I would be grateful if the Minister could expand on those issues in writing and place a copy of the letter in the Library. It would be welcomed also by the NUJ, because any clarity that can be given to this matter would be very helpful. I beg leave to withdraw the amendment.
	Amendment 157 withdrawn.
	Amendments 158 to 159B not moved.
	Amendment 159C
	 Moved by Baroness Miller of Chilthorne Domer
	159C: After Clause 108, insert the following new Clause—
	"Duty of identification
	(1) When on duty and in uniform a police officer shall—
	(a) clearly display his or her identification numerals; and
	(b) when requested to do so by a member of the public, clearly state his or her name or identification number.
	(2) Failure to comply with subsection (1)(a) and (b) shall constitute an offence.
	(3) An offence under this section is liable—
	(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or
	(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both."

Baroness Miller of Chilthorne Domer: This is a very practical amendment which the Government might consider putting into statute. It concerns the duty of identification and arises from the difficulties that have arisen from police in uniform not being able to be clearly identified, as they should be. That is not a statutory requirement; it is only in guidance.
	This issue was highlighted in September. After members of the Metropolitan Police Authority had criticised police chiefs for not formally disciplining officers for not wearing their ID numbers, Sir Paul Stephenson made a pronouncement on it, saying that all uniformed officers were of course expected to wear their ID. However, the very next day, it was noticed that some officers policing the Tamil demonstrations had no ID. The guidance therefore needs statutory backing, which would make the matter very clear. While the amendment may not be perfect, it is simply drafted and would give some power to the elbow of police chiefs who are finding the requirement difficult to enforce. It is a very important issue, as I am sure the Minister accepts. I beg to move.

Baroness Neville-Jones: It would be nice to think that the police would not need to have it set in statute that they need to wear their identification. Will the Minister clarify the precise status of the requirement to display ID? There clearly has been a problem and there appears to be a continuing problem. It would be helpful to know two things: what the precise status of the requirement is and what steps the police have taken since this has come to public attention to ensure that there is no repeat of what must be a disciplinary offence. Is there improved training or clearer guidance on the matter? We are certainly in strong sympathy with the amendment.

Lord Brett: I hope that in responding to the points made by the noble Baroness, Lady Neville-Jones, I shall cover the points made by the noble Baroness, Lady Miller. The HMIC report, Adapting to Protest, which was published in the summer following the G20 protests recommended that the police should ensure officers wear numerals or other clear identification at all times during public order operations and deal with individual officer non-compliance swiftly and robustly. This is a position that the Government fully endorse. I am aware that the Joint Committee on Human Rights in its follow-up report, Demonstrating Respect for Rights, has recommended that it should be a legal requirement for police officers to wear identification numbers while on duty or to identify themselves when asked.
	Police officers of any rank are subject to the standards of professional behaviour set out in the Police (Conduct) Regulations, which were approved by this House and the other place in 2008. These standards reflect the expectations that the police service and the public have of how police officers should behave. Any breach of those standards may lead to disciplinary action being taken. An officer deliberately removing his or her identification to avoid being held accountable is likely to be in breach of the standards expected and therefore liable to be dealt with under the disciplinary arrangements. While I am not convinced that failure to display identification numerals should be a criminal offence, we can look at whether the display of identification numerals should be made more explicit in legislation. Our position on this will be informed by the further review being conducted by HMIC.
	In the light of this encouraging response, I hope that the noble Baroness will consider her amendment unnecessary.

Baroness Miller of Chilthorne Domer: That is, indeed, a very helpful reply from the Minister. He has clearly highlighted that, on the one hand, there is an expectation and something set down as a standard of behaviour—the breach could be subject to discipline—and, on the other hand, there could be a legal requirement, which the Human Rights Committee suggested there should be, so there are two different paths to be followed here. It will be interesting to see whether the Government decide that the legal requirement would give the public more confidence. We think that it would. However, in the mean time I shall await developments and I beg leave to withdraw the amendment.
	Amendment 159C withdrawn.
	Amendment 159D
	 Moved by Baroness Miller of Chilthorne Domer
	159D: After Clause 108, insert the following new Clause—
	"Independent Police Complaints Commission strategic oversight
	(1) The Police Reform Act 2002 (c. 30) is amended as follows.
	(2) After section 10(2)(a) (general functions of the Commission) insert—
	"(aa) the handling of complaints made about police strategy or tactics;"."

Baroness Miller of Chilthorne Domer: My Lords, this amendment deals with the ability of the Independent Police Complaints Commission to deal with complaints. There is frustration that it can deal only with individual complaints and not a more general complaint about police strategy or tactics. This is clearly not the moment of the evening to go into all the examples that I could give here, but does the Minister think that it would improve the IPCC's ability to deal with these issues if its remit was widened as I suggest in this amendment? I beg to move.

Baroness Neville-Jones: My Lords, I have sympathy with this amendment. Could the Minister clarify what the remit of the IPCC is? I went on to the website to have a look and came away not entirely clear about it, as it did not seem to be a very clear statement of the remit. It would make a great deal of sense for the IPCC to include complaints about police strategy and tactics in its remit, if they are not included in the remit of any other body—and, frankly, I cannot think of a more appropriate body for it to be in. I am not sure that it needs to be laid down in statute, but it would be helpful to know what the practical position is and whether there is a body like the IPCC, if not the IPCC itself, that has that issue in its remit.

Lord Brett: My Lords, the IPCC was set up in 2004 to undertake a dual role of ensuring the effective and efficient operation of the whole of the police complaints system for England and Wales, and to raise public confidence in that system. It was established by the Police Reform Act 2002, Section 10 of which sets out its general functions. Those include securing the maintenance of an effective system for handling complaints against the police in England and Wales.
	The Act gives the IPCC the necessary powers to investigate complaints by the public against the conduct of any person serving with the police, and the ability to carry out its own independent investigations into the most serious cases. For example, the IPCC is undertaking a number of independent investigations following complaints about police conduct during the recent G20 demonstrations. The Act purposely does not extend the remit of the IPCC to deal with complaints relating to matters of direction and control, which would of course be the effect of the proposed amendment. However, the powers given to the IPCC include that to make recommendations following an investigation into a complaint, and such recommendations could extend to suggesting a review of strategy or tactics.
	I understand the concern that the police should be properly accountable, not only for the conduct of individual officers but more generally. Chief police officers are of course accountable to police authorities. The police are also subject to the law of the land, and their actions can be scrutinised by the courts. The proper body for providing oversight of the more general strategic and operational nature of policing tactics is, clearly, Her Majesty's Inspectorate of Constabulary. As the,
	"fierce advocate and guarantor of the public interest",
	it has responsibility for monitoring the performance of police forces and authorities. The inspectorate is best placed to deal with issues regarding operational and strategic policing, which are not tackled in the first instance by the chief constable of the police authority concerned.
	HMIC is about to publish a full and comprehensive review into policing and protest, and we will work with the police service to ensure that its recommendations and conclusions are properly assessed and acted upon. That is the correct way forward, and in the light of it, I hope that this report is helpful and that the noble Baroness will find it unnecessary to leave her amendment on the Marshalled List. I believe that the accounting mechanisms we have are, with strict application, fit for purpose.

Baroness Miller of Chilthorne Domer: My Lords, I welcome the support of the Conservative Front Bench for this amendment. Despite the Minister's reply, there is an issue here because the public clearly feel that the Independent Police Complaints Commission is the body to which they make complaints. Of the 276 complaints made after the G20 protest, 78 involved tactics—that is, virtually a quarter. All those people, or a quarter of the public who complained, were told, "Well, sorry, but the IPCC can't deal with it". It will undermine public confidence in that body if that reply comes back to so many of them.
	I hear what the Minister says about it being the job of the HIMC. Nevertheless, the IPCC was set up—admirably—and now has public confidence. The public are complaining to them, and it would be a pity if that was undermined in the way that I suggest. It would be worth coming back to explore this issue further, probably not on Report for this Bill. However, because the Police Reform Act 2002 defined what the IPCC could do very narrowly, it is time to review that. In the mean time, I beg leave to withdraw the amendment.
	Amendment 159D withdrawn.
	Amendment 159E not moved.
	Clause 109 agreed.
	Amendment 159EA
	 Moved by Lord Bradshaw
	159EA: After Clause 109, insert the following new Clause—
	"Policing of transport interchanges
	Where a transport interchange includes a railway station which is within the jurisdiction of the British Transport Police, that jurisdiction may extend beyond the station boundary to include transport links such as station bus stops, taxi ranks, cycle parking and car parking in the vicinity of the station resulting in joint policing of those transport interchanges."

Lord Bradshaw: My Lords, I will not detain the Committee for long but this is a very important amendment. The fact that we are discussing it so late in the night on the fifth Committee day is no fault of mine.
	I am very glad that the noble Lord, Lord Faulkner, will reply to the amendment because, all the time that I have known him, he has been a lusty champion of the British Transport Police. The word "integration" must have dropped from his lips so often that they have made a big pile on the floor.
	This evening I attended a meeting with the chairman of ACPO, who stressed the importance of police forces co-operating with one another and of breaking down barriers between them. It was fortuitous that I attended that meeting but that is exactly what the amendment is driving at. I have no doubt that we will be told that the British Transport Police can pursue somebody who has stolen somebody's handbag, or that they may pursue somebody under the terrorism powers which we have just discussed. I regularly use Reading station, which has a police presence. However, outside, there is a very nasty car park, lots of unguarded bus stops and unattended cycle racks. I simply ask the Government to consider telling chief constables, or at least suggesting to them, that they should enter into agreements with the British Transport Police to have joint jurisdiction over transport interchanges. I do not believe that the words "interchange" or "integrated transport" mean anything unless the passenger, the customer—or whatever we call him—feels safe around interchanges, because it is there where most offences occur. I beg to move.

Lord Berkeley: My Lords, I support the amendment. Earlier this evening, we discussed similar issues. I was interested in one of the reasons that my noble friend Lord Faulkner gave for resisting the idea that airport operators should be able to tender for policing services either among adjacent police forces or the British Transport Police. One of the arguments he made was that airports are spread out. It occurred to me that railways are fairly spread out too. They go from the north of Scotland to Cornwall covering most places in between. There is also a need for specialist knowledge, which the British Transport Police clearly have, and they could easily have similar specialist knowledge for policing airports. I began to wonder why we call them the British Transport Police as they do not police the roads and are not even allowed to bid for policing airports. However, they do police the railways, so why not call them the British Railways Police, which I believe they were called long before I had any involvement in this matter?
	The noble Lord, Lord Bradshaw, gave a couple of examples. I think of the new station that is being built at Birmingham New Street at vast expense. I have read that £600 million of taxpayers' and Network Rail's money is going into that. I am sure that it will be another glorified shopping centre on top of the existing station with lots of platforms. I think also of the new Crossrail stations at Bond Street and Tottenham Court Road. Lorries are about to start trundling around London carrying spoil to build them. Where is the boundary between the station and the roads and shops above? Are agreements really needed between these different police forces before they can police these areas properly?
	When I hear the responses of my noble friend the Minister, I begin to think that there must be more to these issues than the Association of Chief Police Officers defending their patch as if it is a kind of gold mine against incursions. We should be co-ordinating these matters. I still believe that letting airports to go out to competitive tender to allow the BTP to police a bit more transport would be highly advantageous.

Lord Skelmersdale: My Lords, I shall not return to the subject of airports, on which there has been some debate. However, during the speech of the noble Lord, Lord Bradshaw, I was reminded of my local station in Taunton, where there is what I still regard as a British Rail car park on one side and a council car park on the other. If, for example, there is a bag snatching in one or the other, it should be possible—I hope that the Minister will confirm that it is—for either the British Transport Police or a constable in uniform to chase the handbag snatcher from one to the other. That is what this amendment is about—although it does not say that and seems rather one-sided. It is probably intended to do exactly what I have suggested and I hope that on that basis the Minister will confirm that it is unnecessary.

Lord Faulkner of Worcester: My Lords, I should respond to the charge levelled against me by the noble Lord, Lord Bradshaw, that I have been an admirer and supporter of the British Transport Police over many years. To that the only response can be, "Guilty as charged". I am a huge supporter of the British Transport Police and have taken part in a number of debates in this Chamber where I have defended it—particularly when there have been outside forces at work attempting either to diminish its role or to abolish it altogether. The fact that the BTP is a highly regarded force and that its recently retired chief constable is regarded as an icon of policing is a measure of how far the force has gone and how far public and parliamentary opinion has moved in its favour. I am sure that it will be gratified that a number of your Lordships are willing to stay away from their beds at this late hour to sing its praises and to consider the interesting amendment tabled by the noble Lord, Lord Bradshaw.
	The situation is complicated and I shall try to be as brief as I can, because I am conscious that the hour is late. The BTP is the specialist police force for the railway. Its constables have much the same powers as constables of other forces. The difference is that the BTP's jurisdiction is limited, broadly, to the railway. I use the word "broadly" with some care. Under the Railways and Transport Safety Act 2003, a BTP officer has jurisdiction,
	"on track ... on network ... in a station ... in a light maintenance depot ... on other land used for purposes of or in relation to a railway ... on other land in which a person who provides railway services has a freehold or leasehold interest, and ... throughout Great Britain for a purpose connected to a railway or to anything occurring on or in relation to a railway".
	This means that the BTP's powers already extend to many of the places that would be covered by the amendment. Station car parks, bus stops and taxi ranks will often be on land in which a railway operator has a freehold or leasehold interest. Even where that is not the case, the BTP has jurisdiction elsewhere where it is satisfied that it is using its powers for a purpose connected to or in relation to a railway. The car park in Taunton mentioned by the noble Lord, Lord Skelmersdale, would certainly be in that category.
	Further powers are available to the BTP under Section 100 of the Anti-terrorism, Crime and Security Act 2001. Section 100(2) gives BTP constables the same powers as constables of other forces beyond the railway boundary. Unlike those in Section 100(1), these powers do not rely on the BTP receiving a specific request from another force to assist in an incident. The powers are not limited to dealing with terrorist incidents, but they are limited in other ways. The BTP officer must have a reasonable suspicion that a person has committed, or is about to commit, an offence, or that the exercise of the powers is necessary to save life or prevent injury and that securing assistance from the local force would result in serious prejudice to the incident in question. The officer must also be in uniform or have documentary evidence that he is a member of the force.
	I now believe that the existing legislation is wide-ranging enough to ensure that the BTP is not unduly constrained in carrying out its duties. To take a practical example, an officer may see a mugging take place on a train—possibly on a train to Birmingham International station. If the culprit then gets off at Birmingham International and makes his way to the airport, the effect of Section 31 is that the officer has the power to pursue and arrest him whether or not he is still on railway property by the time the officer catches up with him. This is not to say that there are no limits to the BTP's jurisdiction, but I believe that, where there are such limits, they are well understood by BTP officers. My concern with the amendment is that, far from clarifying matters, it would introduce greater uncertainty. We all know a bus stop or a taxi rank when we see one but determining whether a transport link is or is not,
	"in the vicinity of the station",
	is much more difficult, and determining precisely how far the legal boundary extends is more difficult still for a police officer on the ground.
	The noble Lord, Lord Bradshaw, referred to Reading station. Indeed, he mentioned it to me a week ago when we were considering this amendment and I made some inquiries about the BTP's powers to police the car park, the bus stop areas and the taxi rank at Reading. The BTP reports that it polices those parts of the station and that it does so under the existing powers in Section 31 covering land held by a rail operator and land used in relation to a railway. Whether or not the noble Lord happens to see BTP officers when he is touring the car park or the bus stops is not a matter for me; it is a matter for the operational commander. However, they certainly have the power to patrol those areas, so, with great respect to the noble Lord, that is not the best example that he could have used.
	If we had more time, I would take a while to pay my own tribute to the work of the force. It has been around since 1825 and the very earliest days of the railway. I say only that the force has a very long record of service to the railway and its passengers, and, as I said at the beginning of my remarks, the progress that it has made has been remarkable and a source of great pride to the former chief constable, Sir Ian Johnston.
	I hope that it will be clear from what I have said that not only I but the Government as a whole are very strong supporters of the BTP and believe that they have a crucial part to play in helping to achieve the targets that we are setting for increasing rail use by passengers and freight, as well as meeting the objectives set out in this legislation. I hope that the noble Lord will have been sufficiently reassured by what I have said to be prepared to withdraw his amendment, even if, as I suspect, he is not entirely convinced by it. However, I am sure that we will have an opportunity to come back to this matter at some stage in the future.

Lord Bradshaw: The noble Lord is right: I am not convinced by it because I believe that this is a peculiar piece of legislation. To turn to the point made by the noble Lord, Lord Skelmersdale, if the bag snatcher snatches the bag in the railway car park, the British Transport Police will pursue him. If he snatches the bag in the public car park, unless he obviously runs on to the station saying, "I've just snatched a bag", the British Transport Police will be out of the equation altogether. The jurisdiction is wrong; it should relate to what the public want and what the transport user wants, not to what the bureaucracy or the chief constable wants. I shall come back to this but, for now, I beg leave to withdraw the amendment.
	Amendment 159EA withdrawn.
	Clauses 110 and 111 agreed.
	Amendment 159F
	 Moved by Lord Brett
	159F: After Clause 111, insert the following new Clause—
	"Removal of limitation on warrants under Misuse of Drugs Act 1971
	(1) Section 23 of the Misuse of Drugs Act 1971 (c. 38) (powers to search and obtain evidence) is amended as follows.
	(2) In subsection (3) omit "acting for the police area in which the premises are situated".
	(3) Omit subsection (5)."

Lord Brett: This amendment seeks to amend Section 23(3) of the Misuse of Drugs Act 1971 and the amendments in this group are clarifying amendments. The Misuse of Drugs Act 1971 is the legislative vehicle by which we control dangerous or otherwise harmful drugs.
	Section 23(3) authorises a justice of the peace, or in Scotland a justice of the peace, a magistrate or sheriff, to grant a warrant to enter and search premises to any constable acting for the police area if they are satisfied that there are reasonable grounds for suspecting that a person is in unlawful possession of controlled drugs on the premises, or documents relating to an unlawful transaction in respect of such drugs are on the premises. Those with the powers of a constable, who are working for law enforcement agencies with national jurisdiction such as the Scottish Crime and Drugs Enforcement Agency, and the Serious Organised Crime Agency, do not act under the direct control of a chief constable in a particular police area.
	The amendment seeks to remove the phrase,
	"acting for the police area in which the premises are situated",
	from Section 23(3) of the 1971 Act as we wish to make it absolutely clear that people working for law enforcement agencies with national jurisdiction are nevertheless entitled to obtain a search warrant under Section 23(3) where the court is satisfied that the statutory criteria are met. This is important to ensure that these agencies can tackle serious organised crime associated with drug trafficking.
	The omission of these words will also make the position in England, Wales and Scotland consistent with that in Northern Ireland, where these words have already been omitted under Section 23(5) of the 1971 Act. This amendment is primarily a clarifying one. I beg to move.

Lord Skelmersdale: I have a quick question: why now?

Lord Brett: Essentially, at the point at which this legislation was going to the other House, representation was received from the SCDEA seeking that this be resolved and we are pleased to bring this forward. The Scottish Crime and Drug Enforcement Agency, supported by the Crown Office in Scotland, and the Serious Organised Crime Agency both supported these proposed amendments because they will ensure that our activities in connection with drugs and other offences in Scotland are more effective.

Lord Skelmersdale: Thank you.
	Amendment 159F agreed.
	Amendment 159G
	 Moved by Lord Lester of Herne Hill
	159G: After Clause 111, insert the following new Clause—
	"Exemption from civil proceedings for trespass brought by offender
	(1) Section 329 of the Criminal Justice Act 2003 (c. 44) (criminal proceedings for trespass to the person brought by offender) is amended as follows.
	(2) After subsection (1) insert—
	"(1A) This section does not apply where the defendant was at the material time a constable.""

Lord Lester of Herne Hill: So late is the hour that I shall draw attention to the fact that the Minister seems to think that we are discussing something called constitutional renewal, which is not the case.
	The reason I am not in my bed but am keeping everyone up is because of the important issue raised by the Court of Appeal in the Adorian case. I am sorry that the noble Lord, Lord Hunt of Wirral, and the noble and learned Baroness, Lady Scotland, are not here, as they were the principal players involved in us being where we are now.
	The amendment seeks to amend Section 329 of the Criminal Justice Act 2003 to remedy a classic example of unintended consequences, which were brought to my attention as a result of the recent decision of the Court of Appeal in the case of Adorian v The Commissioner of Police of the Metropolis. It was a strong Court of Appeal with Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith.
	At this stage, this amendment is probing, but I promise to return to it at the next stage. Section 329 was enacted in response to the case of Tony Martin, the Norfolk farmer who, in 1999, shot two burglars who had entered his house. In 2003, the surviving burglar sued Martin for damages relating to his injuries, although he later dropped the case. During the passage of the Criminal Justice Bill, the noble Lord, Lord Hunt of Wirral, moved an amendment entitled,
	"Excluding civil liability of victims of crime".
	Following the debate, he withdrew his amendment and the Government agreed to table their own amendment along the same lines. That resulted in Section 329 which provides a defence to a civil suit for trespass to the person brought by a convicted person, where, during the commission of that crime the victim or a third party has taken action which he believed necessary to prevent the crime or to protect themselves, or another person or property. The defendant must have believed that the claimant was about to commit an offence, was in the course of committing an offence, or had committed an offence and the action must not have been grossly disproportionate. Trespass to the person refers to assault, battery or false imprisonment.
	Although the provision clearly applies to third parties who may have intervened to protect the victim or deter the criminal, at no stage in the parliamentary debate were actions against the police discussed. Since this provision came into force in January 2003, it has been used only by police defendants seeking to defend themselves against civil actions.
	In the case of Adorian, he had been convicted of obstructing police officers in the execution of their duty. He sought damages from the police for trespass of the person and negligence in relation to the injuries suffered during the course of his arrest which were,
	"so severe that the force medical examiner concluded that he was unfit to be detained".
	The police sought to strike out the action using Section 329.
	Lord Justice Sedley gave the judgment for the three judges of the Court of Appeal. One of the things he said was that the court could not fail to notice,
	"that this section has nothing on the face of it to do with policing. In what one can call the Tony Martin situation—a sudden encounter with a crime—it gives the individual a defence of honest, even if unreasonable, belief in the need for his or her act; and it forfeits the defence only if the act was grossly disproportionate. There is nothing on the face of the section or in its shoulder-note which manifests an intention to afford the police a novel protection from claims by offenders for objectively unreasonable or unnecessarily violent arrests".
	Lord Justice Sedley continued:
	"The section nevertheless inexorably covers police officers as well as civilians. Indeed, so far as counsel have been able to tell us, since it was brought into force ... it is only police defendants who have invoked it. The consequences should not go unnoticed. In place of the principle painstakingly established in the course of two centuries and more, and fundamental to the civil rights enjoyed by the people of this country—that an arrest must be objectively justified and that no more force may be used in effecting it than is reasonably necessary—the section gives immunity from civil suits, not confined to those involving personal injury, to constables who make arrests on entirely unreasonable grounds, so long as they are not acting in bad faith, and accords them impunity for using all but grossly disproportionate force in so doing".
	The Court of Appeal described the particular facts of the case, explaining that the class of injury was so severe that it was,
	"associated with head-on car crashes or falls from a significant height. But the claimant had been walking at the moment of arrest, and there is at present no evidence suggesting either that he has brittle bones or that anything happened following his arrest which is capable of explaining the injuries".
	Towards the end of the Court of Appeal's judgment, on the invitation of counsel, it then referred in some detail to what happened in this House. It explained in paragraph 36 how the noble Lord, Lord Hunt of Wirral, had sought to insert in the Bill an original provision as I have described because of concerns about the Tony Martin case by protecting private individuals from lawsuits arising out of their endeavours to confront or apprehend criminals. The Court of Appeal referred to the fact that the noble Lord, Lord Hunt of Wirral, withdrew the amendment when the noble Lord, Lord Filkin, undertook that the Government would table their own amendment, directed to the same end, but clearer and more focused and, as Lord Justice Sedley said, perhaps more relevantly one,
	"that does not have any damaging effects on the wider law".
	Then the court referred to the noble and learned Baroness, Lady Scotland, introducing her own amendment, and it quotes what she said. Then the Court of Appeal observed that:
	"Conspicuously, the minister did not take the opportunity, had this been the intent, to say that the clause was meant to create an absolute bar to any action ... Nor did she mention actions against the police. Had she done so, one might have expected considerable constitutional concern about a new defence to assault allegedly committed in the course of an arrest which abandoned the standard of objective reasonableness which the law has historically set for police actions, in favour of a test of subjective belief in a need to commit a trespass to the person, barring only gross overreaction. There might also have been puzzlement why, if such a defence was justified, it was to be confined to the moment of arrest. But an informed observer would have concluded that the amendment was concerned with the protection of private individuals who attempt, albeit misguidedly, to intervene when they witness what appears to be a crime".
	I make no apology for quoting all of that because it explains why we are not in our beds. It is important when a court draws attention to an anomaly that we take it seriously.
	Another example is the case of Buike v the Chief Constable of West Yorkshire. Again Section 329 was invoked to prevent an action brought by the claimant alleging that the police encouraged or allowed a dog to continue to bite the claimant longer than necessary to effect arrest, and dragged him for a substantial distance along the road, stamping on and kicking him.
	The use of Section 329 by the police has led to a mismatch between civil and criminal proceedings. For example, it is a defence to a criminal charge of assaulting a police officer to show that you are protecting yourself against unreasonable force on the part of the police. In that situation, the police cannot argue that although the force was unreasonable it was not grossly excessive. But if the same person tried to sue the police for civil trespass to the person, the police could rely on Section 329 unless their actions were grossly disproportionate. There is no equality of arms and the current position fails to recognise that the police are public officers of the state, not private individuals. They are rightly endowed with special powers, but they have special obligations.
	There is also a risk that Section 329 as it stands violates the right to physical integrity protected by Article 8 of the European convention and the right in Article 13 to an effective remedy. I will not in detail now explain why that is so. An action taken by an ordinary person to protect or defend themselves or another person from a crime must surely be treated differently from a police officer trained in the use of force. Whereas a police officer must be required objectively to justify her or his actions and use no more force than reasonably necessary, an ordinary person may be given some leeway for an honest and instinctive overreaction, which is what motivated the original amendment of the noble Lord, Lord Hunt of Wirral.
	Finally, lowering the level of justification for assault in actions against the police, creating a mismatch between civil and criminal proceedings involving the police and potentially violating the convention is not what Parliament intended when agreeing to the clause. I am sure that it is not what was intended by the noble Lord, Lord Hunt of Wirral, when he originally proposed the provision and I do not believe that it was intended by the noble and learned Baroness, Lady Scotland, and the Government either.
	My amendment would disapply the provision from actions against the police and restore the position that a trespass against the person occurring in the course of an arrest by a police officer must be objectively justified, and that no more force must be used than reasonably necessary. Otherwise, as has happened for centuries, the arrested person must be able to bring a claim for damages. I apologise for taking so long. I beg to move.

Lord Skelmersdale: My Lords, I assure your Lordships' Committee that there is absolutely no way, in any possible sense, that we could support any weakening of the expected standard of behaviour of the police. We have had several discussions already over time in Committee on this Bill on the appropriate consequences of what appears to be inappropriate behaviour during police action.
	I hope that the Minister will be able to take this opportunity to add to his reassurances during those debates and respond fully to the concerns of the noble Lord, Lord Lester. We certainly hope that the 2003 Act has in no way led to any greater leniency for police officers than was previously the case.
	I accept that I am on slightly dangerous ground here, but would not the noble Lord's amendment establish an unprecedented distinction in the civil court between classes of defendant; namely, an officer of police and the ordinary citizen? I am sure that the Minister is better qualified to pronounce on that than I am, and I look forward to hearing his response.

Lord Brett: My Lords, it is with great trepidation that I come to the Dispatch Box to cross swords with the noble Lord, Lord Lester, for whose knowledge of the law I have the greatest admiration. He enunciated very clearly the law of unintended consequences. The amendment highlights the issue. I am grateful for that, but the Government consider it appropriate to consult more widely and to involve the police and other interests before making any decisions as to whether a change to the law outside the Bill is appropriate.
	In any event, the amendment does not address all the scenarios that need to be considered. For example, it would deny the protection of Section 329 to an off-duty constable who finds an intruder in his home. I am sure that that was not the noble Lord's intention.
	Several wider issues are raised, and the Government's intention at this stage is to consult more widely with the police outside of consideration of the Bill. On that basis, we ask the noble Lord, Lord Lester, to withdraw the amendment.

Lord Lester of Herne Hill: I am grateful that the Government want to consult; that is always sensible, but perhaps I may deal with a couple of points.
	The noble Lord, Lord Skelmersdale, raised an important question as to whether treating the police differently from ordinary citizens would create a lack of equality before the law. That was the fallacy, if I may say so, in cases such as Malone, where English courts said that the police can tap our telephones just as an ordinary private person can tap our telephones: they are entitled to full equality of treatment, like any other person and there should be no distinction drawn between them. The fallacy is that, of course, the police are not like an ordinary private person—they are public officers of the state, with special powers and special duties. The European Court of Human Rights held that the tapping of telephones by the police—not by private persons, but by the police—had to be regulated by statute and could not be treated as though it were ordinary conduct by private persons. That is fundamental to any constitutional system of government: the agents of the state have special powers and special duties.
	The second point is that, although the Government may wish to consult, if I am right there is a mismatch between the way that that operates at the moment and the obligations under the human rights convention. Therefore, unfortunately, there will be continuing exposure to the possibility of further humiliation in Strasbourg or by our courts if the point is not addressed. The point about the off-duty constable is very important. Of course, if the constable is not on duty, he is in the same position as a private person. We are discussing the situation where public powers are being used by a public officer on duty. That takes advantage of a loophole sensibly introduced by the noble Lord, Lord Hunt, for a totally different reason. As for the wording, if the Government want to tackle the problem, there is no problem in my agreeing any wording that they would like to produce something more elegant and workmanlike. This problem will not go away. If there is to be consultation, we should get a move on.
	Having said that, I beg leave to withdraw the amendment.
	Amendment 159G withdrawn.
	Schedule 7 : Minor and consequential amendments
	Amendment 160
	 Moved by Baroness Harris of Richmond
	160: Schedule 7, page 169, line 32, leave out paragraph five

Baroness Harris of Richmond: My Lords, I must declare an interest as a former chair of a police authority and the present vice-president of the Association of Police Authorities. I put my name to the amendment tabled by the noble Baroness, Lady Henig, and, with the agreement of your Lordships' House, move it on her behalf. She unfortunately cannot be with us tonight.
	This amendment relates to Clause 5 on police collaboration, which we discussed some time ago. At present, police authorities can use local government legislation about the supply of goods and services by local authorities as an alternative means of collaboration. The effect of the Bill's wording is to prevent police authorities entering into these types of agreements with other police authorities and force them to use the collaboration arrangements set out in the Bill in these circumstances. Is that the Government's intention? It seems that the local government legalisation could still be used to collaborate when entering agreements with non-police bodies, but not when entering agreements with policing organisations.
	It is a police authority's statutory duty to ensure efficiency and effectiveness, so it follows that it should be left to the police authority to decide what structural arrangements best meet local needs. Preventing or mandating the use of particular types of agreement could impede an authority's statutory duty to put in place the arrangements that are most efficient and effective in the circumstances. The amendment removes this limitation and reinstates the current situation that police authorities should be able to decide locally the most effective way of working together. It would mean that there might not be a standard approach everywhere; however, it is not the structures and mechanisms that matter, but better results for our communities tailored to local needs. It has been said time and again in policing that one size does not fit all, and that is particularly true of complex collaboration projects covering large geographical areas. Retaining flexibility is the best way of ensuring that meaningful results can be delivered.
	It would be disingenuous of me to ignore the impact this change would have on the Home Secretary's powers to mandate or prevent collaboration because he has no such powers under local government legislation. That begs the question of why police authorities are not treated as mature partners in the same way as other local government organisations and why the greater devolution promised in the policing Green Paper seems not to be happening in practice. I beg to move.

Lord Brett: My Lords, I rise to resist this amendment, although I recognise the concern that police authorities might have over the provision in Schedule 7 that restricts their use of the Local Authorities (Goods and Services) Act 1970. I understand that Section 1 of that Act is used most commonly by police authorities to make agreements on the provision of goods and services with other public bodies, such as local councils or other emergency services, rather than with other police authorities, and I should make it clear from the outset that the provisions in the Bill do not prevent that continuing and are, in fact, not concerned with that situation.
	However, without this consequential amendment in Schedule 7, an unacceptable loophole would remain. Police authorities could use the 1970 Act for agreements between police authorities where they could be using the collaboration provisions in the Police Act 1996, as amended by Clause 5. This would allow police authority agreements to circumvent the safeguards provided in the collaboration provisions.
	There is no particular advantage for police authorities in using the Local Authorities (Goods and Services) Act with each other instead of the Police Act collaboration agreement provisions—it simply allows agreements about providing goods and services to be made between local authorities and any person—save to avoid having to comply with the provisions in the Police Act. In that way, they do not need to have regard to any guidance that may be issued by the Secretary of State on best practice in drawing up agreements and do not have to consult their chief officer.
	It has been suggested that some agreements between police authorities are too small to warrant being categorised as collaborations and therefore do not deserve to be constrained by the provisions in Clause 5. I argue that the constraints placed on police authority collaboration agreements do not impose a significant burden and I trust that authorities use common sense in judging what is required for compliance in each case. They must consult their chief officer on all agreements but, if the subject of the agreement has no impact on operational matters, that consultation would be routine.
	In our work with police authorities and the Association of Police Authorities on developing the statutory guidance on collaboration, we will want to ensure that it addresses the need to tailor agreements within the legislative framework across the whole spectrum of joint working, from sharing specialist staff between police authorities to multiforce collaboration programmes. The greatest clarity of outcome is achieved in this situation by preventing the availability of any alternative legal mechanism as the basis for collaborative working. On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

Baroness Harris of Richmond: My Lords, I thank the Minister for his comments. The one part of his comments with which I agreed was working with the APA on statutory guidance, which I would certainly encourage. I just feel that the writers of the Bill have not got it; they just have not understood what we are trying to say, quite frankly. The use of common sense is all very well, but I wish that some had been applied when this had been written. At this late stage, I know that we are going to get no further with this. I will read the Minister's response. We may come back to this on Report but, in the mean time, I beg leave to withdraw the amendment.
	Amendment 160 withdrawn.
	Amendments 161 and 162
	 Moved by Lord Brett
	161: Schedule 7, page 172, line 30, leave out from "of" to end of line 38 and insert "relevant entertainment—
	(a) at premises for which a licence for a sex encounter venue is required (or the requirement has been waived) by virtue of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, and
	(b) of a kind, and in a way, by virtue of which the premises qualify as such a venue,
	is not to be regarded as the provision of regulated entertainment for the purposes of this Act.
	(1A) The provision of relevant entertainment—
	(a) at premises which are subject to a licence for a sex encounter venue but are not such a venue merely because of the operation of paragraph 2A(3)(b) of Schedule 3 to the Act of 1982, and
	(b) of a kind, and in a way, by virtue of which the premises would qualify as such a venue but for the operation of that paragraph,
	is not to be regarded as the provision of regulated entertainment for the purposes of this Act.
	(1B) The provision of entertainment consisting of the performance of live music or the playing of recorded music is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it is an integral part of such provision of relevant entertainment as falls within sub-paragraph (1) or (1A).
	(1C) The provision of entertainment facilities is not to be regarded as the provision of regulated entertainment for the purposes of this Act to the extent that it is for the purposes of such provision of entertainment as falls within sub-paragraph (1), (1A) or (1B).
	(2) In this paragraph—"
	162: Schedule 7, page 172, line 40, at end insert—
	""relevant entertainment" has the meaning given by paragraph 2A(2) of that Schedule to that Act;"
	Amendments 161 and 162 agreed.
	Schedule 7, as amended, agreed.
	Schedule 8 : Repeals and revocations
	Amendments 162A and 162B had been withdrawn from the Marshalled List.
	Amendments 163 and 164 not moved.
	Amendment 165
	 Moved by Lord Brett
	165: Schedule 8, page 200, line 26, at end insert—
	"Part 11AMisuse of Drugs Act 1971: warrants
	
		
			 Reference Extent of repeal 
			 Misuse of Drugs Act 1971 (c. 38) In section 23— (a) in subsection (3), "acting for the police area in which the premises are situated", and 
			  (b) subsection (5)." 
		
	
	Amendment 165 agreed.
	Schedule 8, as amended, agreed.
	Clauses 112 to 115 agreed.
	Clause 116 : Commencement
	Amendment 165A not moved.
	Amendment 166
	 Moved by Lord Brett
	166: Clause 116, page 134, line 14, leave out "and" and insert—
	"(ba) section (Removal of limitation on warrants under Misuse of Drugs Act 1971) and Part 11A of Schedule 8 (and section 112(2) so far as relating to that Part), and"
	Amendment 166 agreed.
	Clause 116, as amended, agreed.
	Clause 117 agreed.
	House resumed.
	Bill reported with amendments.

House adjourned at 11.24 pm.